Part 7: Conservation Covenants
Section 117: Conservation covenant agreements
1062 Subsection (1) defines a conservation covenant agreement. It is a voluntary, private agreement between a landowner and a “responsible body” (as defined in section 119), executed as a deed by the parties, and containing provision which meets specified conditions as set out in subsection (1)(a). These conditions are that the provision is of “a qualifying kind”, has a
“conservation purpose”, and is intended by the parties to be for the public good. The meaning of “qualifying kind” is covered in subsection (2). Subsection (3) defines “conservation purpose” and the meaning of “conserving” is dealt with in subsection (4).
1063 Subsection (1) also states that for the agreement to be a conservation covenant it must be apparent from the agreement that the parties intend to create a conservation covenant. No particular wording is specified for that purpose. The intention of that requirement is to ensure that agreements do not take effect as conservation covenants contrary to the wishes of the parties.
1064 Subsection (2) states that a provision of a “qualifying kind” is of one of two kinds. First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.
1065 Subsection (2) also provides that the landowner must hold a “qualifying estate” in the land to which the provision in question relates and this must be specified in the agreement. As set out in subsection (4), a “qualifying estate” is a freehold, or a leasehold estate of more than seven years; subsection (4)(b) provides that a conservation covenant can only be created by a lessee
during the fixed term of the lease, and not during any subsequent period of statutory continuation of the lease (for example, under section 24(1) of the Landlord and Tenant Act 1954).
1066 Subsection (3) sets out what qualifies as a conservation purpose. It extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.
Section 118: Conservation covenants
1067 Section 118 defines a conservation covenant. It is that part of a conservation covenant agreement that is given statutory effect by this section.
1068 This section gives statutory effect to any provision contained in a conservation covenant agreement which is of a qualifying kind, has a conservation purpose, and is intended by the parties to be for the public good – the conditions specified in section 117(1)(a).
1069 This section also gives statutory effect to any provision in a conservation covenant agreement that is ancillary to a provision that meets those conditions. An “ancillary provision” is a provision that does not itself meet the conditions in section 117(1)(a), but is related to the performance of a provision that does – for example, provision for payment for work done on the land, or provision relating to the way in which work is to be performed. Ancillary provisions may not themselves have a conservation purpose or, taken in isolation, be intended to be for the public good; they are nevertheless closely linked with provision of the agreement that does meet the relevant conditions, and so are given statutory effect along with them.
1070 This section also provides that provision for public access to land that is the subject of a conservation covenant is to be treated as ancillary to provision given statutory effect by the section. Provision for public access to land may not itself meet the conditions specified in section 117(1)(a) because it may not itself have a conservation purpose. By treating such provision as ancillary provision, subsection (3) makes sure that the public access provision is given statutory effect.
1071 Both types of provisions of conservation covenant agreements given statutory effect by this section (those that meet the conditions specified in section 117(1)(a) and ancillary provisions) are referred to in the rest of Part 7 as obligations under a conservation covenant (subsection (4)(a)).
Section 119: Responsible bodies
1072 As above, a conservation covenant is an agreement between a landowner and a responsible body. The responsible body is able to enforce compliance with the landowner’s obligations under the conservation covenant (see section 122). It may or may not also be made subject to obligations under the conservation covenant.
1073 Section 119 defines “responsible bodies” as, on the one hand, the Secretary of State and, on the other hand, bodies which are designated by the Secretary of State. Bodies will need to apply to be designated (subsection (2)). An application from a local authority in England will need to satisfy the Secretary of State that it is suitable to be a responsible body, and other bodies will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation (subsections (3), (4) and (5)).
1074 Subsection (6) allows the Secretary of State to revoke a designation by notice in certain circumstances, including if the relevant body no longer meets the conditions for designation.
1075 The Secretary of State must publish and keep up to date a document setting out the criteria which will be applied to determine if an applicant body is suitable to be or to remain a responsible body, which may stipulate that applicants should have a connection with the United Kingdom (subsections (7) and (8)). The Secretary of State must also publish and keep up to date a list of designated responsible bodies.
1076 Subsection (9) defines “charity”, “conservation” and “local authority” for the purposes of
Section 120: Local land charge
1077 Subsection (1) provides that a conservation covenant is a local land charge.
1078 As a result, section 5(2) of the Local Land Charges Act 1975 applies. This imposes a duty upon the responsible body to apply for registration of the conservation covenant as a local land charge.
1079 Subsection (3) amends the application of section 2 of the Local Land Charges Act 1975 so as to ensure that a conservation covenant between a lessor and a lessee is not excluded from being a local land charge.
1080 Subsection (4) modifies section 10(1) of the Local Land Charges Act 1975 in its application to conservation covenants. The modifications reflect the fact that a conservation covenant is effective against subsequent owners of the land only once it has been registered as a local land charge (see section 122(5)(b)). This differs from the general position where the enforceability of a local land charge is unaffected by whether or not it is registered. Accordingly, the registering authority cannot incur liability for non-registration. However, liability for a defective search result remains in the usual way.
Section 121: Duration of obligation under conservation covenant
1081 This section provides that each obligation in a conservation covenant has a specified duration, either as a result of this section or as a result of an explicit provision in the agreement.
1082 The parties can specify the duration of an obligation under a conservation covenant. If they do not do so, an obligation under a conservation covenant has effect for the “default period” which is:
- a period of indefinite duration where the relevant qualifying estate is a freehold estate; or
- the remainder of the term where the relevant qualifying estate is a leasehold estate. 1083 Accordingly, a conservation covenant created by a freeholder will be of indefinite duration if the parties do not specify a shorter duration. The duration of a conservation covenant created
by a leaseholder cannot exceed the remainder of the term of the lease but, again, the parties may specify a shorter term.
Section 122: Benefit and burden of obligation of landowner
1084 This section sets out who is responsible for complying with an obligation under a conservation covenant entered into by a landowner and, therefore, the person against whom any enforcement action can be taken in the event of breach. It also spells out who may take such action (that is, the person to whom the obligation is owed).
1085 Subsection (1) provides that an obligation under a conservation covenant is owed by a landowner to the responsible body under the conservation covenant.
1086 Subsection (2) has the effect that a conservation covenant will bind the landowner who created it (referred to in these notes as “the original covenantor”), and burden the estate in land which enabled the landowner to create it (“the qualifying estate”). A conservation covenant will bind any successors of the original covenantor – that is, anyone who acquires the original
covenantor’s estate in the land (or part of that land) or who holds an estate derived from that estate (for example, a lease of the whole or part of the land) – unless one of the exceptions in subsection (5) applies.
1087 A conservation covenant will not bind anyone whose interest in the land predates the conservation covenant. If a freeholder grants a lease, and then enters into a conservation covenant relating to the land which is the subject of the lease, and the lessee is not a party to the conservation covenant, the lessee will not be bound by any obligation of the landowner under the conservation covenant. On the other hand, where a freeholder enters into a conservation covenant of indefinite duration and then grants a lease of the land then, unless one of the exceptions in subsection (5) applies, the leaseholder will be bound by the conservation covenant throughout the term of the lease.
1088 Subsection (4) provides that a landowner’s liability in respect of an obligation under a conservation covenant comes to an end on parting with the whole of the estate by virtue of which he or she is bound by the obligation, or if the land is no longer bound by the conservation covenant. If the landowner ceases to own only part of the land, he or she will continue to be bound by the obligation but only in relation to the retained land. If an obligation is partially discharged, the application of subsection (2)(b) is correspondingly reduced because the land to which the obligation relates diminishes. In the case of modification, the obligation continues, but needs to be read as modified as respects the land to which the modification relates.
1089 Subsection (5) provides for three situations in which a successor will not be bound by the conservation covenant:
- Subsection (5)(a) provides that a lessee under a lease granted for seven years or less is not bound by positive obligations under a conservation Accordingly, where a freeholder creates a conservation covenant which is registered as a local land charge
(as set out in subsection (5)(b)), and then grants a periodic tenancy (e.g. one which lasts from week to week or month to month), the lessee will be bound by negative obligations in the conservation covenant but not by positive ones. The same result follows if a lessee with a lease of more than seven years (see section 107(4) and the definition of “qualifying estate”) creates a conservation covenant and then grants a sub-lease of seven years or less, or a periodic tenancy.
- Subsection (5)(b) provides that a successor will only be bound by a conservation covenant if it was registered as a local land charge at the time they acquired the An estate in land is “acquired” for these purpose at the time of the disposition (for
example, a sale, a gift, a grant of a lease) even if that disposition is required to be completed by registration at the Land Registry (subsection (7)).
- Subsection (5)(c) provides that a successor will not be bound by a conservation covenant if their immediate predecessor was not bound. This could arise in the context of the discharge of a conservation covenant in respect of part of the land to
which it related or where a conservation covenant is registered late. For example, a landowner, A, and a responsible body enter into a conservation covenant agreement.
Before the responsible body registers the conservation covenant as a local land charge, A transfers part of the land to B, who later transfers it to C. Even if the conservation covenant is subsequently registered as a local land charge, C will not be bound by it because B was not bound by it at the time B transferred it to C. “Immediate predecessor” is defined by subsections (8) and (9).
1090 Subsection (6) deals with the fact that the changes made to the system of local land charges registers by Schedule 5 of the Infrastructure Act 2015 are being introduced incrementally. The changes in question are the replacement of the system where local authorities maintain their own separate local land charges register by a system where a unified local charges register is maintained by HM Land Registry.
Section 123: Benefit of obligation of responsible body
1091 This section sets out who is owed an obligation of the responsible body under a conservation covenant and who can, therefore, enforce it.
1092 It provides that such an obligation is owed to the landowner with whom the responsible body entered into the conservation covenant (referred to in these notes as “the original covenantor”) and anyone who later holds either the relevant qualifying estate or an estate in land derived from this. For example, a transferee of the land, or a lessee, can enforce the responsible body’s obligations. However, the original covenantor or a successor can only do so while he or she holds the relevant estate (subsections (3)(b) and (3)(c)).
1093 Subsection (4) ensures that if a successor to the original covenantor is not bound by certain obligations – in particular, by positive obligations because he or she holds a lease for seven years or less – then the responsible body will not owe the successor any obligations that are ancillary to the obligations that do not bind the successor.
Section 124: Breach of obligation
1094 Subsections (1) and (2) set out what amounts to a breach of negative and positive obligations, respectively. Where a landowner undertakes a negative obligation, they must not breach or allow others to breach it. Where they take on a positive obligation there is a responsibility to ensure that it is performed. These will be relevant considerations where the landowner grants a lease of the land after the creation of the covenant.
Section 125: Enforcement of obligation
1095 Section 125 sets out the remedies that are available in proceedings for the enforcement of an obligation under a conservation covenant. It also provides that when considering, in the context of an application for equitable relief, what remedy is appropriate, the court must take into account any public interest in the performance of the obligation concerned.
1096 Contract principles apply to awards of damages (subsection (3)), and in particular the rules that determine remoteness of damage. Contractual damages compensate the claimant for loss; and, in most cases, the direct loss to the responsible body as a result of breach of an obligation in a conservation covenant may be insignificant. For that reason, it is expected that in most cases the remedy sought will be an injunction, or an order for specific performance of the obligation. In considering claims for an injunction, the court has discretion to award damages instead, and in that context it is expected that a consideration of the public interest will be particularly significant.
1097 Subsection (4) enables the court to award exemplary damages where a landowner has breached obligations. This is to ensure that a landowner is not able to profit from a breach of an obligation in a conservation covenant – for example, by developing the land in contravention of the covenant in circumstances where compensatory damages may be very small. In such circumstances, the court can make an award of damages that will strip the landowner of any profit from the beach of covenant.
1098 Subsection (5) provides that the limitation period in respect of an action for breach of an obligation under a conservation covenant is the same as the limitation period under section 5 of the Limitation Act 1980 for an action founded on simple contract. This means that any proceedings in respect of a conservation covenant cannot generally be brought after the expiration of six years from the date on which the cause of action accrued.
Section 126: Defences to breach of obligation
1099 Section 126 sets out defences to proceedings for breach of an obligation under a conservation covenant. These are: where the breach occurred because of something beyond the defendant’s control (subsection (1)(a)), as a result of something done in an emergency to prevent loss of life or injury (for example, to control flood water)(subsection (1)(b)), or in circumstances where it is not possible to comply with an obligation under a conservation covenant without breaching a statutory control applying as a result of the designation of the land for a public purpose (subsection (1)(c)).
1100 The latter defence will only be available if the land was designated for a public purpose after the conservation covenant was created (subsection (3)) and, in the event that the defence is relied on only because of a failure to obtain authorisation that would have enabled compliance with the obligation, the defendant can show that he or she took all reasonable steps to obtain such an authorisation (subsection (2)).
1101 For example, land may be subject to a conservation covenant which requires the landowner to carry out specified works, and the land, or part of it, may be subsequently designated as a Site of Special Scientific Interest (SSSI). The works specified in the conservation covenant are likely to damage the special interest features for the site and cannot be done without the consent of Natural England. Natural England refuses consent. If the landowner carries out the works required by the conservation covenant he or she will commit an offence under section 28P of the Wildlife and Countryside Act 1981. In these circumstances the landowner could rely on this latter defence.
1102 Subsection (4) provides that the defence of statutory authority applies to conservation covenants. The intention is that when a public body such as a local authority acquires, and uses, land in accordance with its statutory powers it can override a conservation covenant that binds the land, in the same way that it can override an easement affecting the land.
Section 127: Discharge of obligation of landowner by agreement
1103 This section provides that the responsible body under a conservation covenant and a landowner bound by (or having the benefit of) a conservation covenant can by agreement discharge any of the relevant land from the obligation (insofar as it relates to the landowner’s estate). An agreement to do this must be executed by deed by the parties and identify the relevant land, obligation and qualifying estate.
1104 If the whole of the land to which an obligation of the landowner under the conservation covenant relates is discharged from the obligation, the effect is to modify the covenant or, if it is the only obligation under the covenant, to discharge it entirely. Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification or discharge of a registered charge.
1105 If an area of land is discharged from an obligation of the landowner under the conservation covenant, the effect will be that the obligation relates to a smaller area of land because some land will have been freed from the obligation. Subsection (4)(a) ensures that a landowner is no longer bound by an obligation in respect of land which has been discharged from it.
Section 128: Discharge of obligation of responsible body by agreement
1106 This section provides that a person to whom a responsible body owes an obligation under a conservation covenant may agree with the responsible body to discharge the obligation in respect of the estate in land by virtue of which that person is owed the obligation. This can be done in respect of part or all of the relevant land. An agreement to do this must be executed as a deed by the parties and identify the relevant land, obligation and qualifying estate.
1107 If the responsible body under a conservation covenant is released from an obligation under the covenant, that is a modification of the covenant for the purposes of rules 8(1) and (2) of the Local Land Charges Rules 1977. As above, the details of the modification have to be given to the registering authority in relation to the Local Land Charges Register.
Section 129: Modification of obligation by agreement
1108 Subsection (1) creates a means of modifying an obligation by agreement between the responsible body and a landowner bound by (or having the benefit of) an obligation under a conservation covenant. The power can be exercised in relation to any of the land in respect of which the landowner is bound by, or entitled to the benefit of, the obligation under the conservation covenant.
1109 Subsection (2) means that an obligation under a conservation covenant cannot be modified such that, had the relevant provision (as modified) been included in the original agreement, it would not have met the qualifying conditions for having effect as a provision of a conservation covenant (that is, the conditions in subsection 117(1)(a)). For example, an obligation could not be modified so that it does not serve a conservation purpose.
1110 Subsection (3) sets out the requirements for the form and content of the agreement; it must be executed as a deed by the parties and identify the relevant land, obligation and qualifying estate. Subsection (4) provides that any modification will bind the parties to the agreement and their successors in respect of any of the land to which the modification relates.
1111 For example, X enters into a conservation covenant and then transfers part of the land to Y, leases another part to Z, and retains part of the land. The original obligation may, following devolution of parts of the original landowner’s interest, bind X, Y and Z. X then enters into an agreement with the responsible body to modify the obligation. This particular modification will only bind X. It will not bind Y and Z as they are not parties to the modification agreement. In the case of X (and his or her successors), the obligation under the conservation covenant is then read with the modification. In the case of Y and Z (and their successors), the obligation under the covenant has effect without modification.
1112 Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification of a registered charge.
Section 130: Discharge or modification of obligation by Upper Tribunal
1113 Section 130 gives effect to Schedule 18, which makes provision about the discharge or modification of an obligation under a conservation covenant on application to the Upper Tribunal.
1114 An application for discharge or modification may, in some circumstances, be found useful as a response to proceedings brought to enforce an obligation under a conservation covenant.
Subsection (2) gives a person who is the subject of enforcement proceedings the right to apply to the High Court or the county court for an order giving permission to apply to the Upper Tribunal and suspending the enforcement proceedings in the meantime.
1115 Subsection (3) provides that an application cannot be made under section 84(1) of the Law of Property Act 1925 to discharge or modify an obligation under a conservation covenant. This ensures that obligations under a conservation covenant are modified or discharged by the Lands Chamber of the Upper Tribunal only on the basis designed for conservation covenants.
Section 131: Power of responsible body to appoint replacement
1116 Subsection (1) enables the responsible body under a conservation covenant (“the appointor”) to transfer both the benefit and the burden of its obligations to another responsible body (“the appointee”) by appointing it the responsible body under the covenant by agreement executed as a deed by the appointor and appointee (subsection (2)). A conservation covenant can exclude the power to do this.
1117 Subsection (3) provides that where the conservation covenant has been registered as a local land charge, the transfer to the appointee only has effect if the appointor gives to the Chief Land Registrar (or, by virtue of subsection (4)(a), in the case of land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) has not yet taken effect, the authority responsible for the appropriate local land charges register) sufficient information to enable the Registrar (or appropriate authority) to amend the register, as they are required to do by rule 8(2) of the Local Land Charges Rules 1977. In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 has not yet taken effect, subsection (3) does not apply where the appointor is itself the registering authority (which may be the case where the responsible body is a local authority: subsection (4)(b)).
1118 Subsection (5) describes the effect of the appointment. It transfers to the appointee the benefit of every obligation of the landowner under the conservation covenant and the burden of every obligation of the responsible body. This is subject to the qualification in subsection (6) that the transfer of a conservation covenant does not transfer to the appointee any rights or liabilities in respect of an existing breach of an obligation under the conservation covenant. It only has effect in relation to future performance. The appointee cannot take, or continue, enforcement action in respect of a breach which pre-dates the transfer. If the breach is a continuing one the appointee may be able to take enforcement action in respect of the continuing breach after the transfer.
1119 Subsection (7) requires the appointee to give notice of its appointment to every person who is bound by an obligation of the landowner under a conservation covenant.
Section 132: Body ceasing to be a responsible body
1120 This section deals with the situation where the responsible body under a conservation covenant ceases to be a qualifying body or ceases to be designated as a responsible body under section 119(1)(b) (section 119(6) sets out the grounds on which the Secretary of State may revoke a designation). There is no specific provision for the situation where a responsible body has itself ceased to exist because in these circumstances it will cease to be a qualifying body and, therefore, automatically be captured by this provision.
1121 Subsection (2) provides that in such circumstances the body will cease to be the responsible body under the covenant.
1122 Subsection (3) describes what happens in these circumstances. The benefit of every obligation of the landowner under the covenant and the burden of every obligation of the responsible body under the covenant will transfer to the Secretary of State. The transfer does not have effect as regards any rights or liabilities in respect of an existing breach of obligation. It only has effect in relation to future performance (subsection (4)).
1123 Subsection (5) provides that, when the transfer described in subsection (3) takes place, the Secretary of State becomes the custodian of the conservation covenant until either they appoint another responsible body and transfer the conservation covenant to it, or decide to take on the role of responsible body.
1124 Subsection (6) provides that as custodian the Secretary of State may elect to become the responsible body under the conservation covenant by giving written notice to every person who is bound by an obligation of the landowner under the covenant.
1125 Subsection (7) gives the Secretary of State the power as custodian of a conservation covenant to enforce any obligation of the landowner under the covenant in respect of land, and to exercise any power that was conferred on the responsible body in respect of such land.
1126 Subsection (8) states that no enforcement action can be taken against the Secretary of State during the period for which they are the custodian of a conservation covenant or subsequently in respect of the period of custodianship. The Secretary of State will only become liable to perform the obligations of the responsible body under the conservation covenant if they make an election under subsection (6).
Section 133: Effect of acquisition or disposal of affected land by responsible body
1127 Generally when land that is burdened by an obligation or interest (for example, a restrictive covenant or an easement), and the land that benefits from that interest, come into the same ownership, the interest comes to an end. If the land subsequently returns to separate ownership, the interest does not revive. This is known as the doctrine of unity of seisin, or unity of ownership.
1128 By contrast, section 133 provides that where the responsible body under a conservation covenant acquires an estate in land to which an obligation under the covenant relates, this does not extinguish the obligation. The responsible body is bound by the obligation. When the responsible body disposes of land, the obligation remains in force.
Section 134: Effect of deemed surrender and re-grant of qualifying estate
1129 Section 117 requires that a conservation covenant be created by a landowner who holds a “qualifying estate” in the land to which the agreement relates. The qualifying estate must be a freehold, or a lease granted for a term of more than seven years.
1130 Section 134 sets out what is to happen where the qualifying estate is a lease which is surrendered and re-granted by operation of law. This takes place in circumstances where a radical amendment to its terms is agreed between the lessor and lessee. In particular, where the lessor and lessee agree an extension of the term of the lease, there is a deemed surrender and re- grant. Special provision is needed owing to the role in this Part of the qualifying estate. The position of successors under section 122 and 123 depends upon those successors holding the qualifying estate. But the qualifying estate ceases to exist on a surrender and re-grant.
1131 Section 134 provides that in these, circumstances, sections 122, 123 and 127 are to be read as if the “qualifying estate” is a reference to the term of years deemed to be granted by the operation of law. Accordingly, the tenant of the extended lease, and successors, remains liable under the conservation covenant.
1132 However, section 121 is not affected. The duration of the conservation covenant therefore remains unchanged: it will either be the length of the original lease (that is, the default period under section 121(2)(b)) or such shorter period as the parties originally agreed (under section 121(1)).
Section 135: Declarations about obligations under conservation covenants
1133 Subsection (1) gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.
1134 Subsection (2) provides that an application cannot be made under section 84(2) of the Law of Property Act 1925 in respect of an obligation under a conservation covenant.
Section 136: Duty of responsible bodies to make annual return
1135 Section 136 requires a body designated as a responsible body to make an annual return to the Secretary of State, specifies certain information that the return should contain, and provides the Secretary of State with a power to specify by regulations other information that must be provided as part of the annual return.
1136 Subsections (4) and (5) give the Secretary of State the power to prescribe by regulations the information to be included in an annual return, the twelve-month period to which the return is to relate, and the date by which the return is to be made. In default of regulations making provision as to that period and that date, subsection (6) provides that the period and date are such period and date as the Secretary of State may direct.
1137 Subsection (10) clarifies that any information to be included in an annual return prescribed in regulations must relate to the responsible body, its activities, its conservation covenants, or the land covered by its conservation covenants.
Section 137: Crown application
1138 This section gives effect to Schedule 19, which provides that the provisions on conservation covenants in the Act apply to Crown land, and modifies those provisions insofar as they apply to Crown land.
Section 138: Index of defined terms in Part 7
1139 Section 138 sets out an index of definitions of terms used in this Part.
Section 139: Consequential amendments relating to Part 7
1140 Section 139 gives effect to Schedule 20 which makes consequential amendments.
Schedule 18: Discharge or modification of obligations under conservation covenants
1850 Schedule 18 enables the Upper Tribunal to discharge land from an obligation under a conservation covenant, or to modify such an obligation, on application. Any landowner bound by, or entitled to the benefit of, such an obligation, or the responsible body under the covenant, can apply. In practice, applications will be made to the Lands Chamber, and procedure will be governed by the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.
1851 Separate provision is made for discharge and modification, in Parts 1 and 2 of the Schedule respectively. Applications may be made for either, but in some circumstances will be made for both.
Part 1: Discharge by Upper Tribunal
Power to discharge on application by landowner or responsible body
1852 Paragraphs 1 and 2 make provision for applications for discharge, and provide that the Tribunal must add as parties as necessary, depending upon who has made the application: the responsible body and everyone who is currently bound by or entitled to the benefit of the obligation concerned.
Deciding whether to discharge
1853 Paragraph 3(1) provides that the Upper Tribunal may make an order discharging an obligation when it considers it reasonable to do so in all the circumstances of the case. Sub-paragraph (2) sets out the matters that the Upper Tribunal must have regard to when considering whether or not to exercise its discretion. When considering the extent to which the performance of an obligation is, or is likely in the future to be, affordable or practicable (sub-paragraph (2)(a)(iii) and (iv)), sub-paragraph (4) requires the Upper Tribunal to disregard the personal circumstances of the person bound by the obligation.
1854 Paragraph 3(3) requires the Tribunal also to consider, on an application for discharge made by a person bound by or owed an obligation under a conservation covenant by virtue of being a landowner, whether the purpose for which the obligation in question was created could equally well be served by the creation of another conservation covenant on other land held by the landowner. In other words, the Tribunal is to consider whether any form of like-for-like substitution is possible. If it is, paragraph 5 comes into play.
1855 Paragraph 4 gives the Upper Tribunal the power to include in an order a requirement that the applicant pay compensation in respect of any resulting loss of benefit.
1856 Paragraph 5 enables the Upper Tribunal, with the consent of the landowner and the responsible body, to make an order discharging an obligation conditional on entry into a new conservation covenant agreement containing such provisions as the order may specify. This may be an option where an obligation under a new conservation covenant will be able to fulfil the same purpose as the obligation to be discharged. If this is the position, then the landowner and responsible body can enter into an agreement for a new conservation covenant in relation to the replacement land.
Part 2: Modification by Upper Tribunal
Power to modify on application by landowner or responsible body
1857 Paragraphs 6 and 7 make provision for application for modification, and provide that the Tribunal must add as parties as necessary, depending upon who has made the application: the responsible body and everyone who is currently bound by or entitled to the benefit of the obligation concerned.
1858 Paragraph 8 has the effect that the Upper Tribunal’s powers to modify an obligation under a conservation covenant cannot be exercised so as to produce a result which could not have been achieved by the original agreement (because inconsistent with the requirements of section 117(1)(a)). For example, it would not be possible to modify an obligation in such a way that it no longer served a conservation purpose.
Deciding whether to modify
1859 Paragraph 9(1) provides that the Upper Tribunal may make an order modifying an obligation when it considers it reasonable to do so in all the circumstances of the case. Sub-paragraph (2) sets out the matters that the Upper Tribunal must have regard to when considering whether or not to exercise its discretion. When considering the extent to which the performance of an obligation is, or is likely in the future to be, affordable or practicable (paragraph 9(2)(iii) and (iv)), paragraph 9(3) requires the Upper Tribunal to disregard the personal circumstances of the person bound by the obligation.
1860 Paragraph 10 gives the Upper Tribunal the power to include in an order a requirement that the applicant pay compensation in respect of any resulting loss of benefit.
1861 Paragraph 11 enables the Upper Tribunal, with the consent of the landowner and the responsible body, to make an order modifying an obligation conditional on the applicant and the responsible body entering into an agreement for a new conservation covenant containing such provision as the order may specify.
Effect of modification
1862 Paragraph 12 describes the effect of a modification to a conservation covenant, which must for the future be read as modified by the Upper Tribunal’s order as respects the land to which the modification relates. The parties to the proceedings will be bound by the order of the Upper Tribunal, as will their successors (as respects any of the land to which the modification relates).