Balancing Public Access, Property Rights and Nature Conservation: What Role for Conservation Covenants?

Conservation covenants taken over privately owned land have been widely used in some jurisdictions to promote the protection of precious landscapes, wildlife and natural habitats – for example in Australia, the USA and New... [ view full abstract ]

Conservation covenants taken over privately owned land have been widely used in some jurisdictions to promote the protection of precious landscapes, wildlife and natural habitats – for example in Australia, the USA and New Zealand. The Law Commission has advocated changes in the law in England and Wales to encourage their wider use. The uses to which this private law instrument has been directed have, however, varied: in some jurisdictions they have been used primarily to promote environmental and conservation objectives, while in others the focus has been on securing ‘open space’ agreements that can also foster greater public access to ‘green’ space. This article argues that conservation covenants can be used to balance both nature conservation and increased public access to private land, and to provide flexible solutions to prevent and (where necessary) mediate land management conflicts caused by encouraging greater public recreational access to potentially sensitive landscape and wildlife habitats. It is also a legal vehicle that can encourage greater public involvement in conservation management on private land.

This paper considers the use made of conservation covenants in three jurisdictions – New Zealand, Scotland, and England and Wales – and illustrates the different role, focus and utility of covenants in each. It presents comparative research drawing on empirical and doctrinal work undertaken in each of the three jurisdictions in 2017-18. Over that time a series of semi-structured interviews were undertaken with landowners, and with representatives of the relevant government and non-governmental bodies that have a direct role in the negotiation, implementation and ongoing management of conservations covenants over private lands. The paper examines the use of open access covenants by the QE II National Trust in New Zealand; compares this with their use by the National Trust in England and Wales; and considers the implications for the Law Commission’s proposals to extend the use of covenants more widely in English Law. It also considers the use of conservation burdens in Scotland.  It concludes that recognition of the important balancing function that conservation covenants can perform is critical if their potential is to be fully realised.