|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Journal of Environmental Law |
Last Updated: 16 February 2023
315
Conservation Covenants and Community Conservation Groups:
Improving the Protection of Private Land
Kellie Ewing*
Across New Zealand, community conservation groups are taking action to restore and rehabilitate damaged ecosystems. Part of the work that these groups undertake is the restoration of areas of pri- vate land that are significant in protecting New Zealand’s biodiversity but not protected within the public conservation estate. One concern, however, is that the efforts of community conservation groups may not be protected in the long term if the ownership of land that they are restoring changes. Existing mechanisms available for the protection of native ecosystems on private land in New Zealand provide opportunities for landowners to enter into conservation covenants in favour of the Department of Conservation, local authorities, or the Queen Elizabeth the Second National Trust. However, few effective options are currently available to allow community conservation groups to be directly involved in the legal protection of private land. Overseas jurisdictions such as Australia, Canada, and the United States have, however, taken innovative approaches to legal protection on private land to ensure that community conservation groups have the ability to directly negotiate legal instruments for protection with landowners, or to place groups in a position where they can purchase and protect private land through their own means. A number of these approaches could be usefully adopted into New Zealand law to facilitate increased involvement of community groups in the protection and restoration of private land.
*This research was conducted as part of a study currently under way at the University of Waikato which is focusing on the restoration of urban ecosystems and has been funded by the Foundation for Research Science and Technology (“FRST”) through an outcome-based investment (OBI) scheme. The publication of this journal article fulfils one of the requirements of the OBI. The author thanks Professor Barry Barton for feedback on the draft of the article.
1. INTRODUCTION
New Zealand has many exceptional landscapes and endemic flora and fauna that give our environment a distinct character not present anywhere else in the world. Native plants and animals, such as the kiwi and the silver fern, have been embraced as New Zealand icons and represent our identities as New Zealanders both locally and internationally. However, New Zealand’s natural environment has been significantly affected by development in both rural and urban areas. Many of New Zealand’s indigenous ecosystems are extremely vulnerable; others have disappeared altogether.1 For some badly damaged or incomplete ecosystems, restoration is their only chance at long-term survival. Ongoing management is also essential.2 Communities across the country have identified the need for intervention and have banded together and formed groups to restore and rehabilitate damaged ecosystems in their locality. Much of the work that Community Conservation Groups (“CCGs”) do is to fill in the gaps where government agencies have been unable to take action. They are often able to respond to the needs of the community in a more timely fashion than government agencies and are usually more active in promotion of conservation within a community because of their closeness to the local people.3
Part of the work that CCGs undertake is the restoration of areas of private land that are significant in protecting New Zealand’s biodiversity but are not protected within the public conservation estate. Such activities are usually carried out in close association with conservation-minded landowners who want to ensure that remnants of bush on their land are maintained. However, questions arise as to what the fate of the land will be when ownership changes. For example, what happens to the restoration site if the land is purchased by a property developer who wishes to subdivide the site? How will the site be maintained and by whom? Several options exist for landowners that wish to protect their land but the most common, and the one that this article will focus on, is the statutory conservation covenant.
Conservation covenants are voluntary agreements entered into, usually between a government agency or covenanting organisation and a landowner, for the protection and/or management of biodiversity on private land.4 Ownership of the property is maintained by the landowner while an interest in the land is provided to the covenanting body. The landowner only parts with one of what
(1999) 15.
Virginia Environmental Law Journal 245, at 310.
is commonly referred to as the “bundle of sticks” associated with property ownership.5 Covenants for conservation purposes are available in New Zealand under the Conservation Act 1987, the Reserves Act 1977, the Queen Elizabeth the Second National Trust Act 1977 (“QEII Trust Act”), and in some areas, through local authorities as a condition of resource consents. Covenanting usually means that the site will be protected in perpetuity in accordance with the terms of the covenant agreement.6 This means that future owners of the property will be bound to observe the terms of the covenant and therefore will, in the majority of cases, ensure that protection of the natural area is maintained.7
However, the mechanisms that are currently available provide few oppor- tunities for CCGs to become involved in the covenanting process, and usually no provision is made for them in covenanting agreements. Therefore, once land has been sold or transferred, there is no guarantee that a new landowner will continue to allow restoration activities to occur. A CCG that has contributed significant time and resources to a restoration project could potentially be excluded from a site. This means that there is no assurance that the site will be maintained — an essential aspect of ensuring a restoration project is successful. Furthermore, it is then left to the covenanting organisation (Queen Elizabeth the Second National Trust (“QEII Trust”), for example) to ensure that the new landowner complies with the terms of the covenant. While there are monitoring provisions in place, organisations like the QEII Trust, the main covenanting body in New Zealand, are extended to the limits of their resources, and their ability to regularly monitor covenants is constrained. In addition to this, the large number of applications for covenants put forward to the QEII Trust means that there are significant delays between when an application is lodged and the covenant approved. These issues, and others that are discussed in this article, show that the current forms of conservation covenant are not adequately meeting the needs of New Zealand CCGs.
2. NEW ZEALAND’S CURRENT APPROACH TO LEGAL PROTECTION ON PRIVATE LAND
2.1 Conservation Covenants
Conservation covenants are the main form of legal protection used on private land in New Zealand. A covenant can be described as “a promise made under seal, i.e., in a deed”.8 The general purpose of a covenant is to place restrictions
5 Ibid, at 124–25.
or obligations on landowners to prevent them from being able to use their land in a particular way.9 At common law, covenants could generally only be enforced between the original parties to the agreement, that is, where there was privity of estate. Equity extended this slightly to allow covenants to be enforced between landlord and tenant, that is, where there was privity of estate but not of contract. Three other limited exceptions existed so that covenants could be enforced beyond the tenure of the original parties.10 These were:
Under s 301 of the Property Law Act 2007 (“PLA 2007”) provision has been made to allow the benefits of positive or restrictive covenants relating to land to bind successors in title. Under s 302 of the PLA 2007 the burden of a positive or restrictive covenant relating to land will also be binding on successors in title. However, neither the common law, nor equity, nor the Property Law Act 1952 allowed the burden of a covenant in gross to run with the land.11 This approach has been carried through into the PLA 2007. Section 306 of the 2007 Act states that s 303, which provides that restrictive and positive covenants entered into after 1 January 1987 will run with the land, does not modify the law relating to restrictive covenants in gross. To overcome the barriers created by common law and statutory restrictions on use of covenants in gross, provisions were enacted into conservation legislation to make exceptions that allow conservation covenants to run with the land and therefore to bind successors in title. However, while the existing statutes provide opportunities for landowners to negotiate covenant agreements with the Department of Conservation, local authorities, or the QEII Trust, few effective options are currently available to allow community conservation groups to be directly involved in the legal protection of private land. These statutes are discussed below.
10 Ibid, at 1069–70.
11 Ibid, at 1071.
2.2 QEII National Trust Act 1977
The QEII Trust Open Space Covenant (“QEII covenant”) is the main type of covenant protection currently used on private land in New Zealand. QEII covenants are administered by the QEII Trust under the Queen Elizabeth the Second National Trust Act 1977. Section 22 of the QEII Trust Act empowers the Trust to enter into covenant agreements with private landowners:
Where the Board is satisfied that any private land, or land held under Crown lease, ought to be established or maintained as open space.
QEII covenants are voluntarily entered into by landowners, with each covenant varying depending on the terms agreed between the parties.12 In most cases the covenant will burden a small segment of land which requires protection; although in some cases the covenant will be for a whole property.13 QEII covenants are generally in perpetuity, although the Act does allow for covenants to be registered for a limited period of time depending on the conservation status of the land upon which the covenant applies.14
To determine whether a property has characteristics worthy of protection a QEII representative will visit the site to evaluate it. Trust practice is to assess the land based on the following criteria:15
[E]cological and biodiversity value, naturalness, sustainability, existing or potential value as an ecological corridor, wildlife, geological features, landscape values, cultural and heritage values. There will also be practical considerations including: management needs, threats to site values, [landowner] motivation and potential sources of funding.
However, the criteria are not limited to those stated above and the QEII Trust Board can take into account other factors that they consider are relevant to whether or not a QEII covenant is justified. If the Trust is satisfied that the site in question meets the assessment criteria, the covenant will be approved, and once any fencing or surveying requirements have been completed, the covenant
will be noted by the Registrar-General of Land on the title of the property concerned.16
Debra Donahue argues that “established and maintained as open space” in s 22 could be interpreted to mean that the land does not currently hold the values set out in the Act but that the covenant has been established so that at some point it may. This interpretation would be useful for CCGs conducting restoration on private land as it may mean that a restoration site which is being redeveloped from bare land could qualify for protection under the QEII Trust Act even though the site may not presently possess high ecological value.17 The definition of open space in the Act certainly appears to support such an interpretation:18
[A]ny area of land or body of water that serves to preserve or to facilitate the preservation of any landscape of aesthetic, cultural, recreational, scenic, scientific, or social interest or value.
However, it is not clear at this point in time whether such an interpretation would be plausible as the issue has not been tested in the courts, and it appears that Trust practice is to covenant land which already possesses the values set out in the Trust’s covenanting criteria.
To assist in the facilitation of QEII covenants the QEII Trust contributes towards the costs incurred by landowners as a result of entering into the agreement. This may include payment of costs associated with legal advice, fencing, and surveying.19 However, the Trust does not contribute to the main- tenance costs of the area once the covenant is in place, and will not cover survey and legal costs if the covenant is being entered into to obtain subdivision rights.20 While the Trust covers a portion of the costs of covenanting there are often considerable costs to landowners or conservation groups seeking covenant protection. This can act as a deterrent to those who may otherwise seek QEII covenant protection.21 Under s 21(2)(e) of the QEII Trust Act the Trust is also given the authority to pay rates on land which has been covenanted under the Act, although the Trust has never used this power.22
QEII covenants have, in most areas, been a successful mechanism for the protection of open space on private property.23 There have been a total of 2,630 covenants registered and 623 approved, protecting a total area of 102,779 hectares.24 The success of the QEII Trust can be partially evidenced by the fact that there have always been more landowners applying for covenants than the Trust is able to fund.25 However, while government funding of the QEII Trust has been on the rise, so too has the demand for covenants, and at present the Trust is “over-subscribed”.26
2.3 Conservation Act 1987
There are two forms of conservation covenant available under the Conservation Act 1987; these are conservation covenants and nga whenua rahui kawenata.27 Under s 27 of the Act conservation covenants may be entered into in favour of the Minister of Conservation. As with QEII covenants, this type of covenant will run with the land and therefore is binding on successors in title. Once agreed the covenant is noted on the title of the property concerned.28 Where Maori land is to be protected for conservation purposes the Minister of Conservation is given authority, under s 27A of the Conservation Act, to negotiate with the owners of the land for nga whenua rahui kawenata, a form of conservation covenant, to be entered into for the land concerned.29 While nga whenua rahui kawenata may be entered into in perpetuity, s 27A(1)(b) of the Act provides the option for the agreement to either be for a specified term, or otherwise to be reviewed at intervals of not less than 25 years, so that tangata whenua are given the option to modify or extinguish an agreement. Kawenata help to ensure that biodiversity is protected on Maori land without unduly encroaching on the tino rangatiratanga of future generations.30 Kawenata can also provide for limited access to resources for customary cultural purposes.31
28 Ibid, s 27(2).
2.4 Reserves Act 1977
The Reserves Act 1977 provides two other forms of covenant protection as an alternative to those offered under the Conservation Act and the QEII Trust Act. The first are conservation covenants under s 77. These covenants are similar to Conservation Act covenants, can be entered into in perpetuity, or for a defined term, and once registered can bind successors in title.32 The second variation of covenant can be found in s 77A. Under s 77A provision is made for nga whenua rahui kawenata, also similar to those under the Conservation Act, to be entered into for the protection of conservation areas on Maori land. This section of the Act was inserted in 199333 due to the dissatisfaction among Maori regarding the other protection mechanisms that were available.34
Section 77 of the Reserves Act 1977 also provides that “the Minister, any local authority, or any other body approved by the Minister” may “treat and agree with the owner or lessee for a covenant”. This section allows a CCG to apply to the Minister of Conservation to be approved as a covenanting organi- sation under the Act. However, this option appears to have been used very rarely. In my research I was only able to find one CCG that has been approved by the Minister, although it is not clear whether this is because the Minister is not approving community group applications or because CCGs are not aware that this option exists. What is clear, as demonstrated from the example I will now discuss, is that this option has the potential to increase the availability of covenants in New Zealand, increase the involvement of CCGs in the covenant- ing process, and in some situations may provide a more attractive alternative to landowners than QEII covenants or covenants administered by the Department of Conservation.
Banks Peninsula Conservation Trust (“BPCT”) is one CCG which demonstrates how a community group can successfully implement conservation covenants under s 77 of the Reserves Act. The Trust was established in 2001 in response to community dissatisfaction with the Banks Peninsula District Plan which proposed a regulatory approach to managing private land on the peninsula. The community wanted a voluntary approach such as covenanting.35 The Trust was New Zealand’s first CCG to be granted authority to register covenants and has now protected approximately 300 hectares through its covenanting and fencing
32 Reserves Act 1977, s 76(2), (3) & (4).
<www.bpct.org.nz> (last accessed 26/03/08).
programme.36 Unlike the QEII Trust, which waits for landowners to contact them, the BPCT has been active in pursuing land of high ecological value and approaches landowners whose properties hold such value. The group has been well accepted in the community because it is largely “landowner driven”, with a significant proportion of those on the committee being landowners from the area.37
2.5 Local Authorities
Under s 108(1) of the Resource Management Act 1991 (“RMA”), local author- ities are given the authority to require persons applying for resource consents to comply with any conditions that the authority deems appropriate. Under s 108(2)(d) one condition that a council may place on a resource consent is that the applicant enter into a covenant in favour of the consent authority.38 These covenants require landowners to enter into protective covenants in favour of a district council in order to be granted resource consent.39 Similarly, s 220 of the RMA provides that covenants may be required as a condition of subdivision consent.
Consent conditions as a method of biodiversity protection have the potential to be successful conservation tools in New Zealand. This method of ensuring protection was successfully implemented at Barrett Bush in the Waikato region where a significant portion of native bush on private land was transferred as a condition of subdivision under the Waipa District Plan.40 This has added to the size of Barrett Bush without the need for Friends of Barrett Bush to find additional funds to purchase an area of native bush which bordered on the site where the group has already undertaken considerable restoration work.41 If other local authorities were to enact similar rules in their district plans then the work of CCGs could be aided significantly.
2.6 Issues with the Current Approaches
In many cases communities can and do work with landowners to help share some of the responsibility and costs of maintaining private land. However, because there are currently few options available for CCGs to pursue perpetual protection for private land that they work on, there is often no guarantee that the land will continue to be preserved after land ownership changes. This is a major deterrent for community involvement on private land. CCGs have much to offer towards improving and protecting biodiversity on private land, although at present this resource is not being harnessed to its full potential because of the failure of New Zealand legislation to adequately recognise the role that CCGs play in conservation. While the option exists for CCGs to become covenanting bodies under s 77 of the Reserves Act, this option appears to be rarely exercised and, as a result, the provision is failing to meet its legislative purpose.
Edwards and Sharp argue that the limited range of covenanting bodies available in New Zealand can make some landowners reluctant to enter into covenants.42 Creating additional options for landowners to choose from, which provide alternatives to government-run programmes, can lead to the involve- ment of landowners who are anti-government but still would like to preserve their land.43 Some landowners, particularly Maori landowners, may be reluctant to enter into agreements with government departments like the Department of Conservation. Despite its independence the QEII Trust is largely government funded and this can affect public perception of its autonomy. Barton Thompson, writing of American experience, argues that landowners are less likely to feel threatened when they negotiate an instrument with a CCG as the CCG does not have regulatory responsibilities in addition to its covenanting powers.44 Nancy McLaughlin explains that CCGs are also more likely to have “kitchen table” access within their communities, therefore can often work more closely with landowners and understand landowners’ needs better than a government agency could.45
Overseas governments have made options available that can facilitate CCG involvement in conservation on private land and secure their assistance in the long term. This can harness the resources of the community in a way that reduces the burden on government departments which are already strained
— A Responsible Approach” (2004) 31 Ecology Law Quarterly 1, at 6.
for resources. More importantly, it reduces the burden on landowners for maintaining the land while providing security that there will be an independent body to enforce the protection if a future landowner breaches the covenant terms. The protection of private land in New Zealand could be significantly improved if similar approaches were to be adopted here. Options for such improvements are discussed shortly.
For any mechanism to be truly effective it is important that enforcement and monitoring mechanisms are in place so that in the event that the conditions of the agreement are breached the mechanism will be enforced against the default- ing party. The QEII Trust usually monitors covenanted properties every two years.46 However, during the 2006/07 financial year only 1,162 covenants were monitored.47 This works out to be less than half of all covenants and suggests that the Trust is not even meeting its own biannual monitoring targets. This level of monitoring is not likely to ensure that covenants are properly enforced and it would be more appropriate if the Trust was to visit properties on an annual basis.48 Debra Donahue, in her research on QEII covenants, found no record of any cases where the QEII Trust had sought to enforce a QEII covenant and that overall “indications are that enforcement activity has been minimal”.49 Further research for this article was unable to locate any cases where the QEII Trust had taken legal action to enforce covenants.50 In one case a QEII representative was recorded as saying the Trust would sue a quarry developer whose activities may have an adverse effect on a nearby covenanted area,51 although it appears that there are no reported cases to evidence action having been taken. One reason cited by Donahue as to why the QEII Trust is reluctant to enforce covenants against landowners is that if the Trust is seen to be too strict on enforcement then it is possible that landowners may be reluctant to enter into QEII covenants at all.52 However, at present the major reason for irregular monitoring appears to be the Trust’s lack of resources. This problem is likely to grow over time, as the number of covenants increases, unless the QEII Trust’s funding is significantly improved,53 or alternative mechanisms are put in place to ease its workload. As will be discussed shortly, conservation easements may be one such alternative.
53 Ibid, at 155–56.
The mechanisms described above predominantly rely on the voluntary action of private landowners. The onus and cost of protecting and managing areas of native habitat on private land is also largely placed on the landowner.54 The problem with taking this approach to private land is that there will always be a portion of landowners with significant environmental features on their land who will not respond to voluntary mechanisms unless it is economically in their interests to do so.55 There are currently few economic or other incentives for encouraging landowners to protect areas of their land; in fact, the cost of protection can be a significant deterrent.56 Cost is a deterrent not only in the sense that many landowners do not have the financial resources to invest money in conservation, but also because there is often a perception that conservation work is a public good and therefore should be paid for with public money.57
Rates relief is one option that could be used to ease the burden on private landowners. Under s 102(5)(a) of the Local Government Act 2002 a local authority is granted the ability to make a rates remission policy. This policy must meet two requirements: (1) it must state “the objectives sought to be achieved by the remission” of rates; and (2) it must set out “the conditions and criteria to be met in order for rates to be remitted”.58 Once this policy is in place the local authority may choose to offer rates remission to properties that are owned, either entirely or in part, for conservation purposes.59 Under s 8 of the Local Government (Rating) Act 2002 land administered for the purposes of the QEII Trust should be “fully non-rateable”.60 Similarly, conservation areas under the Conservation Act, which includes “land in which an interest is held”, would qualify under the Act.61 It appears that in many instances local authorities are providing rates relief to land which has a QEII covenant registered on the title in accordance with the Local Government (Rating) Act.62 Although, due to the low rateable value of much of the private land that qualifies for rates relief, there is often little incentive effect provided through such relief and it is unlikely to substantially motivate landowners to enter into conservation covenants. In some
58 Local Government Act 2002, ss 109(1)(a) & 109(1)(b). 59 Local Government (Rating) Act 2002, s 85(1).
cases the value of the rates relief offered may not even cover the costs to the landowner of protecting the land, such as fencing costs.63
3. OPTIONS FOR IMPROVING NEW ZEALAND LAW
3.1 Improving Conservation Covenanting
To ensure the quality of a covenanted area many sites require ongoing pest management, fencing to protect the area from stock, and planting or trans- location to replace species that have already been lost.64 CCGs play an important role in the management of native ecosystems, and improving their involvement in covenanting processes and the management of covenanted land could potentially improve the effectiveness of conservation covenants as a tool for biodiversity protection. The approach to conservation covenanting taken in Ontario, Canada, now considered, is a useful example and could be adopted in New Zealand to increase CCG involvement and reduce the burden on the QEII Trust as CCGs would be able to directly negotiate an agreement with a landowner.
Under s 3 of the Ontario Conservation Land Act 1990 landowners may enter into a conservation covenant with a “conservation body” for the purpose of conserving, maintaining, restoring, or enhancing “all or a portion of the land or the wildlife on the land”.65 Non-profit groups, such as CCGs that are registered charities, qualify as conservation bodies under s 3(1) of the Act. There are three key ways that the Act helps to overcome common law barriers to covenants.66 Firstly, under s 3(4) a conservation covenant will be valid even if the CCG does not own land appurtenant to the covenanted land and “regardless of whether the easement or covenant is positive or negative in nature”.67 Secondly, under s 3(5) the covenant will run with the land, therefore is binding on successors in title. Finally, under s 3(6) the CCG is able to take action to enforce the covenant against the landowner and any successors in title. Providing that a CCG effectively monitors and enforces the covenant this form of protection can be significant in maintaining protection on private land.68 To date, Canadian landowners have successfully implemented conservation covenants under
this Act to protect land from subdivision and to prevent drainage of wetlands, construction of new dwellings, and water takings.69
3.2 Revolving Fund
One option that could be made available for CCGs to use to secure long-term protection of conservation areas on private land is a revolving fund. A revolving fund is a fund which allows an organisation to purchase property and place a covenant on the title to ensure that any significant areas are protected on the terms that the group specifies. The land is then resold with a covenant registered on the title.70 A fund of this kind has been successfully implemented by the Trust for Nature in Victoria, Australia. The Trust for Nature purchases land, covenants, and then resells, managing the land in the period between purchase and resale.71 Gunningham and Grabosky also suggest that a revolving loan scheme that offers low-interest loans to community groups could be an effective way of encouraging conservation work. Such a scheme could potentially benefit groups working on both public and private land. This type of scheme would operate by central government providing a loan fund that CCGs could apply to for money to be used in their projects. As a group raises funds it is able to pay its loan back, thus the loan fund is recycled and can be used to assist other groups.72
The benefit of a revolving fund or loan is that it allows CCGs to buy land and ensure that any significant areas are protected on terms that suit the needs of the land without being affected by the wants and needs of a private landowner.73 This type of short-term land purchase can also be beneficial as it allows for efficient use of limited funding because a group is not committing all of its funds to one specific land purchase but, as the name implies, once the land has been covenanted and resold the money from the sale goes back into the fund and can be used to purchase further properties.74 In the case of the Trust for Nature, part of its funding is conditional on the land purchased under its revolving fund being resold with a covenant in place.75 Another benefit of this approach is that
it acts as a backstop method for protecting private land where landowners are unwilling to enter into a conservation covenant. Where a CCG has identified a need for protection on a piece of private land it can wait for the property to be offered for sale and then purchase the land with the revolving fund.76 However, a disadvantage of this approach is the time it may take for desired land to become available for purchase.77 This may be beyond the timeframe possible for some CCGs and would be more appropriately managed by a larger organisation such as the QEII Trust, similar to how the Trust for Nature revolving fund operates in Victoria. One body that could operate a revolving fund in New Zealand would be the New Zealand Native Forests Restoration Trust. The Trust is one of New Zealand’s longest-standing restoration groups, having been established in 1980, and its track record suggests that it would be an ideal candidate for running such a programme.78
3.3 Improving Monitoring and Enforcement
There will always be a number of landowners who will not comply, even with regulatory mechanisms, unless there is a serious risk of enforcement. Therefore an important factor in ensuring the success of mechanisms for protection of conservation areas on private land is to have a system in place for enforcing the covenant or agreement against the landowner and for this system to be used in the event that there is a breach. By enforcing breaches of the law the state shows that the mechanisms used have more credibility, which is likely to result in higher levels of compliance as people realise that if they breach the law or agreement action will be taken to enforce it against them.79 Enforcement can be defined as “any action or intervention taken to determine or respond to non- compliance”80 and includes:81
Monitoring, inspecting, reporting, gathering evidence to detect violations, and negotiating with individuals ... to develop mutually acceptable methods for achieving compliance. As a last step to compel compliance, enforcement includes recourse to legal action or dispute settlement.
Environmental Law and Policy (2nd ed, 1998) 326.
Where enforcement is low there are likely to be lower levels of compliance as people will not take the threat of enforcement seriously.82 Without enforce- ment the regulatory mechanisms put in place can lose their “deterrent effect” altogether.83
Another key factor in ensuring a mechanism is successful is monitoring. This is important as monitoring helps to determine whether or not a project is meeting its objectives and whether any changes are required to the scheme to increase its effectiveness.84 Without good monitoring it is also not possible to determine whether or not the mechanisms that are being used are the most cost-effective option for a particular project.85 However, as discussed, the QEII Trust does not monitor its covenants regularly, and according to the Department of Conservation, staff monitoring of covenants under the Reserves and Conservation Acts occurs even less frequently if at all.86 CCGs have a role to play in the monitoring process, and because of their constant and direct involvement on sites and with landowners they can act as stakeholder watchdogs by reporting to the relevant organisation or government agency if landowners are not complying with their part of the agreement.87 If CCGs were to be given the option to become covenanting organisations as in the United States and Canada then their ability to ensure covenants are enforced would be greatly increased.
3.4 Conservation Easements: The American Approach to Protection on Private Land
In the United States one of the most common mechanisms for protecting private land is the conservation easement, with over 6.2 million acres of land (approximately 2.5 million hectares) currently protected by local and state land trusts using conservation easements.88 “Conservation easement” can be defined as:89
natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.
This form of easement operates in a similar fashion to most forms of conser- vation covenant used in New Zealand in that they are voluntarily entered into and binding on successors in title.90 Most easements are entered into in perpetuity, which means that long-term protection is usually guaranteed.91 The landowner maintains ownership of the land but agrees to certain limitations being placed on the use of his or her land.92 The flexibility of easements means that to encourage landowners to protect their land a group can agree with the landowner for certain limited development rights such as the right to build an additional building on the site in a specified location at a later date. This can help to reassure landowners that they will not lose the right to undertake all developments on their land.93 Another advantage of the protection offered by conservation easements is that it can often exist beyond the life of the CCG that entered into the agreement as it is possible for the easement to be passed on to another land trust in the event that the holder of the agreement is wound up.94
In the United States the key piece of legislation regarding conservation easements is the Uniform Conservation Easement Act 1981 (“UCEA”). This statute provided a model for each state to base its easement legislation on and helps to overcome the common law restrictions on the use of easements.95 The UCEA limits what kinds of organisation can hold a conservation easement to either:96
(i) a governmental body empowered to hold an interest in real property under the laws of this State or the United States; or
(ii) a charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open-space use,
protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.
All states but one in the United States have adopted an easement statute in varying forms.97 Each statute provides rules on who can be the holder of a conservation easement, but in most states the holder of the easement will either be a government body or a CCG.98 Some states require that a CCG has been formed for a minimum of two years to ensure that the group is stable enough to enforce a conservation easement.99 The CCG negotiates the easement with the landowner and once the agreement is registered it is the responsibility of the group to enforce the agreement against the landowner if the terms of the easement are breached.100 Because, in the majority of cases, a landowner will have purchased the land subject to the easement with notice of the encumbrance it is unlikely that a future landowner will be able to have the easement overruled on the basis that the easement is damaging to his or her economic interests.101
The easement document sets out the terms of the access arrangement between the parties. It is registered on the title of the property concerned and therefore will be binding on future owners. This helps to ensure access and/or protection in the long term. The landowner retains legal ownership of the property, in much the same way as occurs with conservation covenants in New Zealand, but confers on a public agency or approved CCG the right to enforce restrictions upon the land as set out in the easement agreement. These often involve restricting development on the land to prevent adverse impacts on significant natural areas.102 In a traditional sense, agreeing to an easement means that the landowner will provide a right of access onto their land to a third party whose entry to the property would otherwise be considered trespassing unless some other form of licence had been given by the landowner. In the case of a conservation easement, access is not always provided; rather, the easement agreement will confer on the easement holder a right to enforce the conditions of the agreement against the landowner — for example, to prevent the landowner from cutting down trees in the area covered by the easement.103 Where possible, it is helpful if easements are drafted in more general terms, as terms that are too
specific may make the easement easier to break by a future landowner and may raise the issue of enforcement for the CCG involved.104
The UCEA specifically modifies the common law on easements to ensure that it cannot be used to weaken an easement in the same way that may occur with easements in New Zealand. The UCEA provides:105
A conservation easement is valid even though: (1) it is not appurtenant to an interest in real property; (2) it can be or has been assigned to another holder;
(3) it is not of a character that has been recognized traditionally at common law; (4) it imposes a negative burden; (5) it imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder; (6) the benefit does not touch or concern real property; or (7) there is not privity of estate or of contract.
At common law there are three main forms of easement: positive, negative, and in gross. A positive easement may either provide the owner of the dominant tenement, that is, the land whose favour the easement is for, with a right to undertake certain activities, that would normally be considered trespass, on a neighbouring property known as the servient tenement;106 or, be used to “prevent a landowner from using his or her land in a particular way”.107 At common law the owner of the servient land was generally not required to take any action.108 This has been altered by s 294 of the PLA 2007 which provides that an easement created after 1 July 1987 can be enforced against the owner of the servient land if he or she fails to undertake positive actions required by the easement. Negative easements, on the other hand, require the owner of the servient land to refrain from certain activities, and if the servient owner does not comply then the dominant owner has the right to enforce the easement against the servient owner.109
A conservation easement is a generally negative easement in the sense that it prevents the landowner from being able to use his or her land in a certain way.110 At common law only a narrow range of negative easements were allowed. These included “certain water rights, rights of support for buildings, and rights to
107 Ibid, at 993–94.
light and air”, and, as the class of negative easements is now closed, further exceptions are unlikely to be accepted by the courts.111 This presents a prob- lem to conservation easements at common law in New Zealand and requires legislative intervention if conservation easements are to become useful tools for the protection of private land. However, if a conservation easement statute is enacted in New Zealand it would be helpful for the statute to specifically state that positive acts are enforceable to restrict the likelihood of the easement being successfully challenged in the courts.112
The third form of easement, an easement in gross, can be distinguished from the first two forms as it is not essential that the easement encumber a separate piece of land but may be created, in favour of any person, to burden the land of the covenantor;113 in other words, the easement is not appurtenant to neighbouring land.114 Section 291 of the PLA 2007 allows easements in gross to be created and to run with the land, which ensures an easement will be binding on successors in title. Because a conservation easement has no dominant tenement it is also an easement in gross.115 Further, a conservation easement is negative in the sense that it generally requires a landowner to refrain from certain activities, and it is not attached to a particular piece of land. Technically, a conservation easement may be “like a negative easement in gross”.116 At common law such an instrument would not be enforceable.
Prior to the enactment of easement-enabling statutes in the United States, courts were reluctant to enforce conservation easements because they ultimately have the effect of allowing a past landowner to control what present owners are able to do with the land.117 As New Zealand does not have a conservation easement statute like the UCEA, conservation easements would remain vulnerable to common law doctrines and it would be hard for a CCG to negotiate an easement that could be successfully enforced. Conservation easements would also be weak under current New Zealand law because s 317 of the PLA 2007 allows easements (and covenants) to be extinguished in a wide range of situations including: a change in the nature or extent of the use being made of the benefited land, the burdened land, or both; changes in the character of the neighbourhood; and other circumstances that the court considers relevant. Therefore, if New Zealand CCGs are to obtain the benefits of conservation
Columbia Journal of Environmental Law 257, at 267–68.
easements, it would be necessary for Parliament to enact legislation similar to that of the United States.
One of the significant advantages of conservation easements for CCGs is that groups do not need to rely on a public agency to negotiate, monitor, and enforce an agreement, and the terms of the agreement can be specifically negotiated to meet the needs of the landowner, the CCG, and the local community.118 CCGs can help educate landowners about easements and assist them through the process of donating or selling an easement on their land.119 Cheever and McLaughlin argue that landowners are likely to find conservation easements more attractive than government-led approaches such as regulation because:120
It is up to landowners to determine whether they want to enter into a con- servation easement, therefore it is likely that where there are incentives offered to encourage easements there will be a higher uptake.121 In the United States landowners are provided with significant tax benefits for agreeing to a con- servation easement. They can be used to help motivate reluctant landowners to become involved with CCGs or to assist those landowners who would not otherwise be able to afford protection on their land to seek the protection that they would like.122 Tax deductions are offered for the difference in value of private land before covenanting and the value afterwards. A tax rebate is available for the difference in value.123 New Zealand landowners are offered “no income tax advantages” to encourage them to enter into an agreement to
covenant their property,124 and little in the way of rates relief. Therefore, the development of a tax relief scheme may be beneficial in encouraging increased conservation on private land. Such a scheme could be most effective in securing long-term protection if the tax advantages were to be offered to landowners who choose to protect the native bush on their land in perpetuity with a covenant.125 As with other mechanisms, the effectiveness of conservation easements
is only certain if there is monitoring and enforcement to ensure that the terms of the agreement are being met.126 It is important that CCGs are aware of the potentially high costs of enforcing easements when determining whether they have the capacity to take on an easement of a certain scale, otherwise the purpose of entering into the agreement may not be fulfilled.127 Where land changes ownership then it is possible that action may have to be taken to enforce the easement. This may lead to a group having to take or defend proceedings in the courts in order to have the terms of the agreement upheld.128 If an ease- ment holder fails to enforce the rights that they have under the agreement then this may be considered abandonment and could allow the courts to terminate the easement at the request of a landowner.129 This highlights the importance of ensuring that a conservation easement is enforced. Adam Draper argues that to ensure long-term protection it is desirable for there to be a right of “third-party enforcement” so that a conservation organisation or public body can take an action to enforce the easement against the landowner if the CCG who negotiated the agreement does not have the capacity to pursue it.130 One way that this could be done would be for a government authority to be given third-party enforcement rights.131
However, as considered, without a statute such as that used in the United States, conservation easements are often hard to enforce.132 Therefore, if New Zealand CCGs are to gain the benefits associated with conservation easements, it will be necessary for the New Zealand Parliament to enact legislation similar to the UCEA to overcome the current barriers to their creation. Enacting a conservation easement statute does not require substantial modification of the law as “it is based on the prevailing view of private property rights as
(2005) 18.
transferable commodities” which is already part of New Zealand law because of the common law roots.133 In fact, other forms of statutory easement already exist in New Zealand to evidence the possibility that a conservation easement statute could be enacted. For example, under ss 26–31 of the New Zealand Walking Access Act 2008 statutory provision has been made so that easements can be entered into and declared by the New Zealand Walking Access Commission to create public walkways on private land.
4. CONCLUSION
This article has demonstrated the inadequacies in the law relating to conser- vation covenants in New Zealand and its failure to effectively provide for the involvement of community conservation groups in the protection of private land. While landowners do currently have the option to protect their land through covenants, these mechanisms do not ensure that community conservation groups that have been involved in restoring the land will be guaranteed involvement if the ownership of the land changes. What is needed is for legislation in New Zealand to reflect the important role that community conservation groups play in the conservation of fragments of native bush on private land, by providing mechanisms for them to directly negotiate covenant or easement agreements with landowners. This would greatly facilitate increased protection of biodiversity on private land in a way that cannot occur under the present structures. Community groups often have better results at communicating with private landowners than government departments. The groups are not only well placed to negotiate agreements that suit the landowner and the local community, but are more likely to ensure that the project is monitored regularly. By creating such options, the burden that the QEII Trust is currently under could be reduced and it would allow the Trust to focus on the multitude of covenants that it already administers. The legislative examples from the United States and Canada could be adopted into New Zealand law. As has been shown by their successes, the provisions would facilitate greater involvement of community conservation groups in the protection of the environments that are precious to those communities.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2008/10.html