My Lords, I thank noble Lords for their consideration of this part of the Bill. I also take this opportunity to thank the Law Commission, as this part of the Bill is based on its work and the draft Bill that it prepared. Its ongoing support as the Bill has moved through the various parliamentary stages has also proved invaluable.
Conservation covenants are an important and flexible tool for the environment’s conservation and improvement—and I know that there is some frustration that this was not drafted as a specific Bill, but it is right that we legislate for them now rather than waiting. They complement other measures in the Bill, such as biodiversity net gain. Conservation covenants are private agreements entered into voluntarily to deliver long-term conservation outcomes for the natural and heritage
features of the land—and I welcome the broad support of noble Lords from around the House, particularly that of the Green Party. Importantly, the legislation allows for covenants to bind successor landowners, which ensures that they can deliver lasting conservation for future generations; the legislation also allows for them to be modified or discharged to cater for changing circumstances.
Amendments 266, 267 and 268, tabled by the noble Earl, Lord Devon, seek to ensure greater formality in the process for creating these covenants. Before I get into the detail, I emphasise again that these agreements are voluntary, and a covenant needs to be exercised as a deed to be entered as a land charge, which I hope goes some way to reassuring noble Lords, including the noble Baroness, Lady Jones of Whitchurch. Conservation covenants cannot be imposed—rather, the parties will need to work together to set them up in line with the requirements set out in the Bill. As these are legally binding agreements, there needs to be a degree of formality, and the Bill’s provisions ensure that there is.
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Agreements must be in writing, signed by the parties, and must make clear that the parties intend to create the covenant. I assure all noble Lords that the Government’s guidance will reinforce these points and explicitly encourage parties to secure legal advice before entering into covenants. A covenant would be effective only against future landowners, in perpetuity or otherwise, once registered as a local charge, as an additional step needed beyond entering into the agreement itself. I also reiterate that if a landowner wanted to change or discharge the covenant they negotiated or inherited, they could agree this with the responsible body. Ultimately, if they could not reach agreement, they could go to the lands tribunal for a decision. I hope that this reassures my noble friend Lord Caithness.
The Government wish to allow flexibility, given the wide range of scenarios in which covenants might be used. Parties should be allowed to shape their covenants to their circumstances, including on matters such as duration and consideration, and to convey their intention to create their covenants and execute them in the manner that they so wish. The parties can set the duration of the covenant to suit their particular circumstances. The Bill simply ensures that, where the parties choose not to specify duration, a default duration in perpetuity applies. Guidance will make this very clear and will encourage the parties to seek independent legal advice, so that decisions taken about duration are taken with a full understanding of their implications.
My noble friend Lord Trenchard was also concerned about enforcement. Where one party breaches a conservation covenant, it falls to the other party to take enforcement action. They can aim to resolve the breach themselves, use alternative dispute relation mechanisms or ultimately take the matter to court. A range of court remedies are potentially available, including injunctions to stop damaging activities, orders requiring performance of the covenant and awards of exemplary damages to ensure that there is no financial gain from the breach. I will write to my noble friend with the details on his other points.
I fully appreciate the sentiment behind these amendments, as do the Government. However, we feel that adopting them would curtail some of this flexibility. These amendments might even lead to certain covenants being invalid, where the additional requirements proposed by the noble Earl, Lord Devon, were not met, resulting in lost conservation opportunities. The approach in the Bill as drafted gets the balance right. It was also supported by over 80% of the respondents when the Law Commission proposed it in its consultation. The noble Earl, Lord Devon, also asked about an impact assessment. We have already published one on biodiversity net gain, which is available in the Printed Paper Office and on the parliamentary website.
Amendment 269, from the noble Earl, Lord Devon, aims to ensure that payment and access obligations are given statutory effect. I can reassure him that this is already accounted for. Clause 111 as currently drafted already gives statutory effect to ancillary provisions which support the performance of the covenant’s core provisions. Paragraph 983 of the Explanatory Notes explicitly cites a payment provision as an example of an ancillary obligation. The legislation needs to be cast broadly enough to capture a range of different ancillary provisions, and it would not be possible or appropriate to list all potential types of ancillary provision in the Bill.
Amendment 274, from the noble Earl, Lord Devon, limiting responsible bodies from the charitable and public sectors to those whose sole purpose is conservation, risks excluding some bodies with a wider focus. The national parks authorities are a good example. They have an important conservation function, though clearly it is not their main purpose, and they may wish to become responsible bodies to support that function. For-profit companies, such as the water companies, may have relevant expertise, and there may be some landowners who would simply prefer to enter into a covenant with a body outside the public or charitable sectors. The Government’s consultation in 2019 proposed broadening the scope of the bodies that could apply to those from the for-profit sector. The majority of respondents were in favour. Responsible bodies will be integral to conservation covenants and what they deliver, and the Government do not want to rule out any organisations that have the expertise and resources to help deliver the long-term conservation benefits that these covenants will make possible.
I should add that any prospective organisation must be designated by the Secretary of State, who will make their decision based on published designation criteria. It is highly unlikely that developers would meet the eligibility criteria, as a number of noble Lords have suggested; conservation is unlikely to be one of their core functions. The National Farmers’ Union and other key stakeholders, such as the Country Land and Business Association, have been involved in developing these criteria to ensure that they are robust. I hope I can reassure the noble Earl that there will not be some sort of unregulated free-for-all, with unscrupulous organisations designated and trying to trick unsuspecting landowners into signing up to unfavourable terms.
Amendment 276, tabled by the noble Earl, Lord Devon, deals with the role of the Secretary of State as custodian of covenants or holder of last resort—I know this is of
concern also to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Jones of Whitchurch. This really is an important safeguard, as it ensures that the conservation covenant can continue in the absence of a suitable responsible body. But we do not feel that it would not be right to legally require the Secretary of State to perform the responsible body’s obligations, as the amendment proposes. These obligations could be very onerous and financially very sizeable, resulting in significant financial liabilities to the public purse, but I do hear the concerns raised.
In response to the noble Earl’s scenario, there would of course be recourse to a number of courts and law tribunals, but, fundamentally, the Government will designate only responsible bodies that want to do conservation. As I have said before, predatory multinationals would not fall into this category. We will write in response to his specific example on damages, to give a more considered response, and would be happy to arrange a meeting between officials and Ministers for the noble Earl and the team.
Finally, I turn to Amendment 276A, tabled by the noble Lord, Lord Cameron of Dillington. Given that the main role of a responsible body is to oversee the performance of the landowner’s obligations under the covenant, this amendment does not appear to be appropriate. A responsible body would not acquire any rights in land by virtue of entering into a conservation covenant, and if the responsible body wanted to buy rights of common land, or benefit from rights of common land for any reason, it could do so in the normal way, as the noble Lord, Lord Inglewood, suggested. To reiterate, and to reassure my noble friend Lady McIntosh of Pickering, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lords, Lord Inglewood and Lord Oates, conservation covenants will not override pre-existing rights, whether statutory rights or private property rights. Commoners—people who have rights in or over common land—will therefore be able to enforce their rights, regardless of the later creation of a conservation covenant. The noble Lord, Lord Inglewood, was absolutely right to emphasise the importance that they have to our cultural heritage.
I thank noble Lords for raising all these important points regarding the implementation of conservation covenants. I welcome the broad agreement that, on balance, they are a good thing. It is a technical area, but it is important that we get it right. I ask noble Lords not to press their amendments.