Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants

Abstract

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.

Exploring the potential of long‐term agreements for achieving landscape‐scale environmental recovery

“…In addition, most tend to only consider the flow of ecosystem services to the covenantor, and not to wider society (Archibald et al, 2021). To address this, there is a strong case for establishing holistic oversight by public bodies, alongside public consultation in the negotiation and execution of covenants (Rodgers & Grinlinton, 2020, p. 392).…”

“…In Australia, where covenants are also well‐established, they are often used within conservation programs to direct land management, yet again, this is often of a restrictive nature (Lindsay, 2016). Although not currently commonplace, covenants could instead comprise both positive and restrictive measures (Rodgers & Grinlinton, 2020, p. 402).…”

Integrating ecosystem markets to co-ordinate landscape-scale public benefits from nature

“…vi This will change with the implementation of Part VII of the Environment Bill 2020, which will empower a range of public and charitable bodies to hold the benefit of a covenant as "responsible" bodies. The Bill, when passed into law, will also enable a wider range of ecosystem service buyers to use them to create long term "property" interests (rather than shorter term contracts) under the WCC and PC 67,68 .…”

Catching the tide: Reversing legal trends to find collective and long‐term solutions that value the natural world

“…Equivalent enduring obligations have also recently been enabled in Scotland in the form of conservation burdens and climate change burdens, but have been little used (Title Conditions (Scotland) Act 2003, ss 38-42, 46A-48). This legal approach is well-developed in other jurisdictions such as the USA (Ristino & Jay, 2016) and New Zealand, with possible lessons for developments in the UK (Rodgers & Grinlinton, 2020). As well as accepting that managing land for nature is a legitimate land use that merits recognition, such covenants and equivalents support the further aims of providing a long-term, potentially permanent constraint on how land is used, way beyond the terms of the statutory land-management schemes, and providing a means for various parties to come together to act collectively, whether a groups of neighbouring land-owners agreeing similar covenants or linking land-owners with those willing to offer financial or practical assistance to enable land to maintained for biodiversity purposes.…”