My Lords, I thank all noble Lords who have contributed to this debate and especially the noble Earls, Lord Devon and Lord Caithness, for their amendments. I also thank the noble Earl, Lord Devon, for taking the time to discuss this important topic with the Secretary of State last night, and with Defra officials and the Law Commission. I start by emphasising that the Law Commission concluded that a regime for statutory conservation covenants is needed because there is currently no simple legal tool that landowners can use to secure conservation or heritage benefits when the land is sold or passed on.
Amendment 111, in the name of the noble Earl, Lord Caithness, risks limiting crucial flexibility in the design of covenants. The Government strongly support the Law Commission’s approach of keeping the content and procedural requirements for conservation covenants simple and proportionate. We want to avoid unnecessary complexity and cost—and cost might dissuade landowners from entering into conservation covenants, leading to important conservation opportunities being lost. It is also vital that parties have the flexibility to design conservation covenants to suit their needs, given the wide range of conservation purposes they could be used to secure. We expect to see a range of different covenants created, from preserving small-scale heritage work done on a Tudor house through to securing long- term landscape-scale conservation management.
Amendment 109, in the name of the noble Earl, Lord Devon, seeks to prevent landowners inadvertently signing up to agreements, but I think this scenario is unlikely. The agreement must show that the parties intend to create a conservation covenant. A conservation covenant cannot be validly created unless the agreement clearly shows that the parties intended to create it. The Government have been working closely with stakeholders, including the NFU, CLA and the National Trust, to develop guidance, to be published, that will set out in
more detail the process for creating conservation covenants and encourage both parties to take legal advice before entering into such an agreement.
On Amendment 110, I will first clarify something I said to noble Lords during the debate on the eighth day of Committee. To confirm, it is not necessary for a conservation covenant to be executed by deed for it to be registered as a local land charge. I also reassure the noble Earl, Lord Devon, that his concerns were carefully considered by the Law Commission: Clause 113 adheres to its final recommendations. His proposal that the agreement must be created in writing and signed was well received. In practice, those who prefer to execute their agreement as a deed may do so, and of course executing an agreement by deed does not guarantee that the parties will seek legal advice on the terms set out in the agreement—although, as I said, our guidance will encourage parties to take legal advice.
A perpetual agreement might be desirable to some; equally, a fixed-term conservation covenant could be appropriate to others. The proposal for flexibility on duration had the clear support of consultees and the Law Commission saw no sensible alternative. Where consideration forms part of an agreement, the clauses already allow for that to be captured. Requiring agreements to include provisions on duration and consideration risks rendering otherwise helpful agreements invalid if they fail to mention them, as consideration in particular may not be relevant to all agreements.
On Amendment 112, regarding responsible bodies, I agree with the noble Earl, Lord Devon, that for-profit bodies have a role to play in ensuring the success of conservation covenants. The Government’s 2019 consultation found broad support for allowing for-profit organisations to apply to be responsible bodies: 58% of respondents agreed, with only 26% against. The Government will closely check approved responsible bodies. Regulations on annual returns may require responsible bodies to provide an update on their eligibility. As part of the application process, we will also require organisations to notify us if conservation is no longer their main purpose or activity.
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Noble Lords mentioned water companies as potential responsible bodies and were somewhat horrified at the prospect. However, if a water company were to be designated, it might find it helpful to make a covenant so that the land is managed in such a way as to prevent sewage flooding and storm overflows. There are genuine environmental reasons why water companies may wish to enter into a covenant, given how much we have been discussing the environmental impact of water companies in debate on previous days. These proposals are largely in line with the Law Commission’s draft Bill.
The most significant change that we made is to allow a wider range of bodies, including for-profits, to apply to be responsible bodies. This approach received broad support from consultees. We will consider a range of organisations with expertise in land management that could deliver long-term conservation outcomes. Applicants will be designated by the Secretary of State if they fulfil the necessary conditions. The noble Earl’s amendment aims to restrict for-profit bodies to those whose sole purpose is conservation. Very few bodies, if
any, would fulfil this criterion, and this could lead to important conservation opportunities being lost. There are already sufficient safeguards built into the clauses. The Government’s responsible-body selection process will be rigorous, and ultimately, the Secretary of State has the power to de-designate responsible bodies which are not fulfilling their role.
Turning to the noble Earl’s Amendments 113, 114, and115, while I respect his intention to safeguard landowners’ interests if a responsible body should cease to operate, these amendments will not provide any substantive additional safeguards and in fact may have the unintended consequence of undermining the general intention of the custodianship provisions. The custodianship provisions act as an important backstop in the event that a responsible body ceases to be a responsible body, something that we expect will happen only rarely. They ensure that a conservation covenant can continue while a new responsible body is found, something that the Secretary of State will want to do swiftly. Our provisions already enable the Secretary of State to exercise the powers afforded to a responsible body. This will include the power provided under the Bill to bring the covenant to an end through agreement with the landowner, if both parties agree that this is the best course of action. Amendment 115 would set an arbitrary 12-month time limit on custodianship, after which a covenant would automatically be terminated. This could lead to opportunities for conservation being lost on a technicality, which is exactly the eventuality that this clause seeks to avoid.
Finally, I turn to Amendment 116, tabled by my noble friend Lord Caithness, whom I thank for his consideration of the Bill and for his proposed amendments in this group. However, I assure him that this amendment is not needed. If parties wish to convert existing non-statutory agreements into conservation covenants, so that they can take effect as statutory conservation covenants, they are free to do so. There is no need for an additional mechanism for this purpose. Responding to what my noble friend said earlier in his speech, the Government do not believe that it is necessary for this legislation to require a landlord to secure approval from the tenant, or vice versa, before entering into such a covenant.
I hope that I have reassured noble Lords, and I ask the noble Earl to withdraw his amendment.