Status: We will begin work on this project at the beginning of 2012 and we intend to publish a consultation paper in late 2012
Under current law it is possible to use a restrictive covenant to burden neighbouring land with negative obligations (for example, not to build on the land or use it for business purposes). However, there are circumstances where it may be appropriate to employ a covenant where the benefit is not specifically linked to neighbouring land. One is where a conservation objective would be met by an obligation to use, or not use, land in a particular way.
The project
This project will investigate the case for a new statutory interest in land – a conservation covenant – that would enable such interests to be enforced by a particular body, or class of bodies, regardless of whether they owned neighbouring land. For example, a conservation covenant could require the renovation and maintenance of a monument, protect a rare wildlife habitat or provide public access to a stately home.
The Law Commission’s project will investigate what conservation objectives ought to be of sufficient importance to bind land. We will also consider which bodies should be able to enforce conservation covenants in the event that they were introduced; these might include government and public bodies, local authorities and conservation charities.
The law already contains limited provisions enabling certain covenants to be enforced by specified bodies (for example, the National Trust) rather than by the owner of neighbouring land. These provisions have been implemented on a piecemeal basis and often without a framework establishing precisely how the interest should function, be enforced or be brought to an end. Our reform would consider, for England and Wales, whether these existing provisions are fit for purpose or whether they should be incorporated within a wider, purpose-built, regime.
The benefits of this reform would be felt by the bodies who would be able to take advantage of a more efficient and flexible system than is available under the existing law. This would, in turn, benefit the public – the individuals who make use of the sites protected by conservation covenants and, more generally, communities and society at large by protecting, while facilitating the use of, cultural, ecological and environmentally important resources. Landowners who agreed to a covenant binding their land would also benefit; for example, because they receive a one-off or regular payment in consideration, or because of the knowledge that their own conservation objectives would remain enforceable after they have parted possession with the land.
Next steps
We will review, in discussion with Government, how to take the project forward in the light of consultation responses. If the project proceeds to a final report with draft Bill, we anticipate that publication will be in late 2014.
