Schedule 18: Discharge or modification of obligations under conservation covenants
- 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.
- 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
- 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
- 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.
- 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.
Supplementary powers
- 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.
- 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
- 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.
- 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
- 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.
Supplementary powers
- 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.
- 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
- 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).
