Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants
| Author | David Grinlinton,Christopher Rodgers |
| DOI | http://doi.org/10.1111/1468-2230.12504 |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12504
Covenanting for Nature: A Comparative Study
of the Utility and Potential of Conservation Covenants
Christopher Rodgers∗and David Grinlinton†
Conservation covenants over private land are extensively used in some jurisdictions to secure a
wide range of public benefits: in some cases primarily to promote nature conservation, while
elsewhere to foster conservation alongside greater public access to ‘green’ space. This article
considers the use of conservation covenants in New Zealand, Scotland, and England and Wales.
It argues that they can play a unique role in balancing nature conservation, property rights
and increased public access to private land. It reviews proposals for new legislation in England
and Wales and argues that, if it is to be successful, the potential of conservation covenants to
secure greater public access to private land should be more strongly emphasised. Their successful
use in New Zealand shows that, while recognising the important balancing function that they
can perform, this emphasis is critically important if covenants are to fulfil their potential to
‘reconnect’ people and nature.
INTRODUCTION
Conservation covenants over private land have been used in many jurisdictions
to protect and manage precious landscapes, wildlife and natural habitats. They
can also be used, however, to deliver a wide range of other ‘public goods’,
including increased recreational public access to privately owned land and
improved downstream water quality in catchments. This article will consider
the potential for conservation covenants to achieve an appropriate balance
between conservation values, public access and private property interests. It
will also consider the contribution that conservation covenants can make to
policy choices about future land use – for example where the optimal balance
should fall between protecting conservation values, increasing public access to
land and protecting private property rights. The article considers the use of
conservation covenants in NewZealand, Scotland, and England and Wales, and
will offer a number of case studies to illustrate the unique role that they can play
in giving legal expression to the optimal balance between these three factors
in individual cases. It will conclude with a critique of the Law Commission’s
proposals for a new conservation covenant scheme in England and Wales, set
in comparative context, and explore the lessons that can be learned for their
successful implementation.
∗Professor of Law, Newcastle University, UK.
†Professor of Law, University of Auckland, New Zealand.
C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited. (2020) 83(2) MLR 373–405
A Comparative Study of the Utility and Potential of Conservation Covenants
The terminology applied to define conservation covenants varies in dif-
fering jurisdictions, as does their potential scope. They are variously defined
as ‘conservation easements’ (USA), ‘conservation burdens’ (Scotland), ‘open
space covenants’ or ‘conservation covenants’ (New Zealand) and simply ‘con-
servation covenants’ (England and Wales).1The legal models display simi-
lar characteristics, with terminological variation reflecting the different le-
gal cultures in each jurisdiction.2Their essential characteristics are, however,
broadly the same: they are typically agreements made ‘between a landowner
and a conservation body which ensure the conservation of natural or her-
itage features on the land . . . [they are] private and voluntary arrangement[s]
made in the public interest which continue to be effective even after the land
changes hands’.3They are therefore more flexible and durable than freehold
covenants, which in English law will only bind future landowners to the ex-
tent that they impose restrictive obligations – obligations on a landowner not
to carry out an activity.4This is a major drawback in the context of con-
servation management, where the positive long-term management of land
and natural habitats is usually needed in order to deliver conservation bene-
fits to society at large, rather than to an individual who owns neighbouring
land.
Conservation covenants are therefore a curious legal instrument. They are
a hybrid legal institution – private agreements which serve a public pur-
pose, and which are neither wholly governed by private law principles or
by public law. They create obligations with regard to the land that are per-
petual and will usually bind not only the landowner creating the covenant,
but also future landowners. They therefore breach the limitations imposed
in many legal systems on the imposition of enduring restrictions on the use
of land. At common law, further, a covenant or easement can only be taken
for the benefit of neighbouring land which the covenant ‘touches and con-
cerns’.5This will not be the case for a conservation covenant, where the
benefit to be secured – for example, promoting nature conservation or pro-
viding public recreational access to the land – is a collective value of public
interest.
While covenants taken over privately owned land are usually only enforce-
able by those with the benefit of the covenant (for example, a neighbouring
1 See further C.T. Reid and W. Nsoh, The Privatisation of Biodiversity (Cheltenham: Edward Elgar,
2016) ch 5, esp 179.
2 For example, the term ‘conservation easement’ was used in the US Uniform Code on
Conservation Easements deliberately, to reflect the familiarity of US property lawyers and
courts with the terminology and principles applicable to easements, and to emphasise their
perpetual nature – it was felt that the term ‘covenant’ would emphasise its origins in an
agreement and imply that it could be terminated and/or altered: see National Conference of
Commissioners on Uniform State Laws, Uniform Conservation Easement Act (1981, last revised
2007), Commissioners Prefatory Note 1-2 at https://www.uniformlaws.org/viewdocument/
final-act-with-comments-16?CommunityKey=4297dc67-1a90-4e43-b704-7b277c4a11bd&
tab=librarydocuments (last accessed 14 September 2019).
3 Law Commission, Conservation Covenants Law Com No 349 (2014) para 1.1.
4Tul k vMoxhay (1848) 41 ER 1143; Rhone vStephens [1994] 2 AC 310.
5Mayor of Congleton vPattison (1808) 103 ER 725; Rogers vHosegood [1900] 2 Ch 388; P&A Swift
Investments vCombine English Stores Group Plc [1989] AC 632.
374 C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited.
(2020) 83(2) MLR 373–405
Christopher Rodgers and David Grinlinton
landowner), this kind of statutory covenant, whatever the nomenclature applied
to it, is enforceable as provided by the relevant enabling statute – usually by a
‘responsible body’ holding the benefit of the covenant, such as a conservation
charity, government body or local authority. It is therefore more appropri-
ate for delivering and securing long term public benefits. The development
of conservation covenants in the common law world has, to a certain extent,
been a development based on statutory intervention to abrogate the restrictions
otherwise imposed by the principles of property law.
There is considerable interest in promoting conservation covenants in Eng-
land and Wales, as a means to ‘reconnect’ people and nature.6The Law Com-
mission has recommended changes to English law to facilitate this.7The En-
vironment Bill 2019–20 will introduce legislation implementing (with some
minor revisions) the Law Commission proposals.8The Law Commission’s pro-
posed covenant model is primarily focussed to promoting nature conservation
and protecting heritage assets.9The experience from other jurisdictions shows,
however, that conservation covenants can also be a powerful tool for securing
greater public access to private land. They can also provide flexible solutions to
prevent, or resolve, land management conflicts caused by encouraging greater
public access to areas of ecological fragility. Their ability to balance private
property rights, nature conservation and increased public access also makes
them a unique mechanism for securing public goods on privately owned land.
In other jurisdictions that characteristic has under pinned their successful use
– for example in New Zealand, where open access covenants and registered
easements have been used to implement public policy for nature conservation,
while providing an effective mechanism to manage public access to privately
owned land, and over Crown pastoral leasehold land. This success has been built
on a clear recognition that an appropriate balance must be achieved between
ecological and conservation goals, facilitating public access, and recognising the
interests of private property owners. This flexibility and the potential balanc-
ing function of conservation covenants could arguably have been more fully
explored by the Law Commission.10
6 See, for example, the Department of the Environment Food and Rural Affairs, A Green Future:
Our 25 Year Plan to Improve the Environment (London: HM Government, 2018) 62.
7 Law Commission, n 3 above. And see the Law Commission consultation paper which preceded
it: Conservation Covenants: A Consultation Paper Law Com CP 211 (2013).
8 See Environment Bill 2019-20, Part 7. For the background to the legislative proposals
in the 2019 Bill see DEFRA, Conservation Covenants: Consultation Outcome, summary of
responses and government response 23 July 2019 at https://www.gov.uk/government/con
sultations/conservation-covenants/outcome/summary-of-responses-and-government-response
(last accessed 14 September 2019). For the prior consultation paper with detailed pro-
posals, see DEFRA, Conservation Covenants February 2019 at https://consult.defra.gov.uk/
wildlife-management/conservation-covenants/supporting_documents/conservationcovenants
consultdoc.pdf (last accessed 14 September 2019).
9 Law Commission, n 3 above, 1.1. And see ibid, 3.5 which sets out the proposed obligations to
be contained in a covenant. These arespecified as preserving, protecting, restoring or enhancing
the natural environment, natural resources or the cultural or built heritage. See ibid, 2.12 on
their potential role in protecting heritage and community assets, including archaeological sites.
10 The Law Commission’s consultation produced several submissions that stressed the importance
of covenants for increasingpublic access, including reference to the need to balance this with the
C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited.
(2020) 83(2) MLR 373–405 375
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