Environment Bill (HC Bill 3)
PART 6 continued
Contents page 1-9 10-19 20-29 30-39 40-56 57-59 60-69 70-79 80-89 90-99 100-109 110-119 120-129 130-139 140-149 150-159 160-169 170-179 180-189 190-199 200-209 Last page
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(5)
The Secretary of State must provide a responsible authority with any other
information—
(a) that is held by the Secretary of State, and
(b)
that the Secretary of State considers might assist the authority in
5preparing a local nature recovery strategy.
95 Interpretation
(1) This section has effect for the purposes of sections 91 to 94.
(2) “Local authority” means—
(a) a county council;
(b) 10a metropolitan or non-metropolitan district council;
(c) a London borough council;
(d) the Common Council of the City of London;
(e) the Council of the Isles of Scilly.
(3) “National conservation site” means—
(a)
15a site of special scientific interest, within the meaning of Part 2 of the
Wildlife and Countryside Act 1981;
(b)
a national nature reserve declared in accordance with section 35 of that
Act;
(c) a Ramsar site, within the meaning of section 37A of that Act;
(d)
20a marine conservation zone designated under section 116 of the Marine
and Coastal Access Act 2009;
(e)
a European site, within the meaning of regulation 8 of the Conservation
of Habitats and Species Regulations 2017 (SI 2017/1012).
Tree felling and planting
96 25Controlling the felling of trees in England
Schedule 16 makes amendments to Part 2 of the Forestry Act 1967 in relation to
the enforcement of the power to control the felling of trees in England.
97 Local highway authorities in England to consult before felling street trees
After section 96 of the Highways Act 1980 insert—
“96A
30Duty of local highway authorities in England to consult before felling
street trees
(1)
A local highway authority in England must consult members of the
public before felling a tree on an urban road (a “street tree”).
(2)
A local highway authority must have regard to any guidance given by
35the Secretary of State to local highway authorities about how to
discharge the duty under subsection (1).
(3) The duty under subsection (1) does not apply in a case where—
(a)
the street tree has a diameter not exceeding 8 centimetres
(measured over the bark, at a point 1.3 metres above ground
40level),
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(b) the authority considers that the street tree—
(i) is dead,
(ii)
is required to be felled by virtue of an order under the
Plant Health Act 1967,
(iii)
5is required to be felled under any enactment on the basis
that the tree is dangerous, or
(iv) is required to be felled in order to comply with—
(a)
a duty to make reasonable adjustments in the
Equality Act 2010 because the tree is causing an
10obstruction (see section 20 of that Act), or
(b)
a duty in section 29 of that Act (prohibitions on
discrimination etc in the provision of services)
because the tree is causing an obstruction, or
(c)
the felling of the street tree is required for the purpose of
15carrying out development authorised by—
(i)
planning permission granted under section 70, 73, 76D,
77 or 79 of the Town and Country Planning Act 1990, or
(ii)
outline planning permission granted under section 92 of
that Act.
(4)
20In subsection (1) “urban road” means a highway, other than a trunk
road or classified road, which—
(a)
is a restricted road for the purposes of section 81 of the Road
Traffic Regulation Act 1984 (30 miles per hour speed limit),
(b)
is subject to an order made by virtue of section 84(1)(a) of that
25Act imposing a speed limit not exceeding 40 miles per hour, or
(c) is otherwise a street in an urban area.”
Part 7 Conservation covenants
Creation of conservation covenant
98 30Conservation covenants
(1)
A conservation covenant is so much of an agreement to which this section
applies as is given statutory effect by section 100.
(2)
This section applies to an agreement between a landowner and a responsible
body if—
(a) 35it contains provision which—
(i) is of a qualifying kind,
(ii) has a conservation purpose, and
(iii) is intended by the parties to be for the public good,
(b)
it appears from the agreement that the parties intend to create a
40conservation covenant, and
(c) the agreement is in writing signed by the parties.
(3)
The reference in subsection (2)(a) to provision of a qualifying kind is to
provision—
(a) requiring the landowner—
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(i)
to do, or not to do, something on land in England specified in
the provision in relation to which the landowner holds a
qualifying estate specified in the agreement for the purposes of
the provision, or
(ii) 5to allow the responsible body to do something on such land, or
(b) requiring the responsible body to do something on such land.
(4)
For the purposes of subsection (2)(a), qualifying provision has a conservation
purpose if its purpose is—
(a)
to conserve the natural environment of land or the natural resources of
10land,
(b)
to conserve land as a place of archaeological, architectural, artistic,
cultural or historic interest, or
(c)
to conserve the setting of land with a natural environment or natural
resources or which is a place of archaeological, architectural, artistic,
15cultural or historic interest.
(5) In this Part—
-
a reference to conserving something includes a reference to protecting,
restoring or enhancing it; -
“qualifying estate” means—
(a)20an estate in fee simple absolute in possession, or
(b)a term of years absolute granted for a term of more than seven
years from the date of the grant and in the case of which some
part of the period for which the term of years was granted
remains unexpired; -
25a reference to “the qualifying estate”, in relation to an obligation under a
conservation covenant, is to the estate in land by virtue of which the
condition in subsection (2)(a)(i) was met in relation to—(a)if the obligation is not an ancillary obligation, the provision
giving rise to the obligation, or(b)30if the obligation is an ancillary obligation, the provision giving
rise to the obligation to which it was ancillary;(and for this purpose “ancillary obligation” means an obligation under
provision falling within section 100(1)(b)); -
“natural environment”, in relation to land, includes—
(a)35its plants, animals and other living organisms,
(b)their habitats;
(c)its geological features.
99 Responsible bodies
(1) The following are responsible bodies for the purposes of this Part—
(a) 40the Secretary of State;
(b)
bodies which are designated under this section (referred to in this Part
as “designated bodies”).
(2)
The Secretary of State may, on the application of a local authority or other
body, designate it as a responsible body for the purposes of this Part.
(3)
45The Secretary of State may only designate a local authority if satisfied that it is
suitable to be a responsible body.
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(4)
The Secretary of State may only designate a body that is not a local authority if
satisfied that it—
(a) meets the condition in subsection (5), and
(b) is suitable to be a responsible body.
(5) 5The condition is that—
(a)
in the case of a public body or a charity, at least some of its main
purposes or functions relate to conservation, or
(b)
in any other case, at least some of the body’s main activities relate to
conservation.
(6)
10The Secretary of State may revoke a designation by notice to the body
concerned if—
(a)
the body has applied to the Secretary of State for its designation to be
revoked,
(b)
the Secretary of State is satisfied that the body is not suitable to remain
15as a responsible body, or
(c)
in the case of a body other than a local authority, the Secretary of State
is satisfied that the body does not meet the condition in subsection (5).
(7)
The Secretary of State may determine the criteria to be applied in deciding
whether a body is suitable to be or to remain a responsible body (which may
20include criteria relating to the body’s connection with the United Kingdom).
(8) The Secretary of State must publish (and keep up to date)—
(a)
a document setting out the criteria applicable for the purposes
mentioned in subsection (7), and
(b) a list of the bodies who are designated under this section.
(9) 25In this section—
-
“charity” means a charity registered under the Charities Act 2011 or an
exempt charity (within the meaning of that Act); -
“conservation” means conservation of—
(a)the natural environment or natural resources of land,
(b)30places of archaeological, architectural, artistic, cultural or
historic interest, or(c)the setting of land with a natural environment or natural
resources or which is a place of archaeological, architectural,
artistic, cultural or historic interest; -
35“local authority” means—
(a)a county or district council in England;
(b)a London borough council;
(c)the Common Council of the City of London;
(d)the Council of the Isles of Scilly.
40Effect of conservation covenant
100 Statutory effect
(1)
The following provisions of an agreement to which section 98 applies have
statutory effect as a conservation covenant—
(a) provisions in respect of which the qualifying conditions are met, and
(b) 45provisions ancillary to any provision falling within paragraph (a).
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(2)
If the agreement includes provision for public access to land to which other
provision of the agreement (being provision which meets the qualifying
conditions) relates, the provision for public access is to be treated as ancillary
to that other provision.
(3)
5In subsections (1) and (2) “qualifying conditions” means the conditions in
section 98(2)(a).
(4) In this Part—
(a)
references to an obligation under a conservation covenant are to an
obligation of the landowner or the responsible body given statutory
10effect by this section as part of the conservation covenant, and
(b)
references to the land to which an obligation under a conservation
covenant relates are, in the case of an obligation given statutory effect
by this section by virtue of being ancillary to another provision, to the
land to which the obligation under the other provision relates.
101 15Local land charge
(1) A conservation covenant is a local land charge.
(2)
For the purposes of the Local Land Charges Act 1975 the originating authority,
as respects a conservation covenant, is the person by whom an obligation of the
landowner under the covenant is enforceable.
(3)
20In section 2 of the Local Land Charges Act 1975 (matters which are not local
land charges), the references in paragraphs (a) and (b) to a covenant or
agreement made between a lessor and a lessee do not include a conservation
covenant.
(4)
In its application to a conservation covenant, section 10(1) of the Local Land
25Charges Act 1975 (compensation for non-registration or defective official
search certificate) has effect as if—
(a)
in the words preceding paragraph (a), the words from the beginning to
“but” were omitted,
(b) paragraph (a) (non-registration) were omitted, and
(c)
30in paragraph (b), for the words from “in existence” to the end there
were substituted the words “registered in that register at the time of the
search but was not shown by the official search certificate as so
registered”.
102 Duration of obligation under conservation covenant
(1)
35An obligation under a conservation covenant has effect for the default period,
unless the covenant provides for a shorter period.
(2) The default period for the purposes of subsection (1) is—
(a)
if the qualifying estate in relation to the obligation is an estate in fee
simple absolute in possession, a period of indefinite duration, and
(b)
40if the qualifying estate in relation to the obligation is a term of years
absolute, a period corresponding in length to the remainder of the
period for which the term of years was granted.
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103 Benefit and burden of obligation of landowner
(1)
An obligation of the landowner under a conservation covenant is owed to the
responsible body under the covenant.
(2)
Subject to the following provisions, an obligation of the landowner under a
5conservation covenant binds—
(a) the landowner under the covenant, and
(b)
any person who becomes a successor of the landowner under the
covenant.
(3)
In subsection (2)(b) “successor” (in relation to the landowner under the
10covenant) means a person who holds, in respect of any of the land to which the
obligation relates—
(a) the qualifying estate, or
(b)
an estate in land derived (whether immediately or otherwise) from the
qualifying estate after the creation of the covenant.
(4)
15An obligation of the landowner under a conservation covenant ceases to bind
the landowner under the covenant, or a person who becomes a successor of
that landowner, in respect of—
(a) land which ceases to be land to which the obligation relates,
(b)
in the case of the landowner under the covenant, land in relation to
20which the landowner ceases to be the holder of the qualifying estate, or
(c)
in the case of a successor, land in relation to which the successor ceases
to be the holder of the qualifying estate or of the estate derived from the
qualifying estate, as the case may be.
(5) Subsection (2)(b) does not apply if—
(a)
25the obligation is positive and the person becomes a successor by virtue
of holding a term of years absolute granted for a term of seven years or
less from the date of the grant,
(b)
the conservation covenant was not registered in the local land charges
register at the time when the successor acquired the estate in land
30concerned, or
(c)
the successor’s immediate predecessor was not bound by the obligation
in respect of the land to which the successor’s interest relates.
(6)
In the case of land in an area in relation to which section 3 of the Local Land
Charges Act 1975 does not yet have effect, the reference in subsection (5)(b) to
35the local land charges register is to the appropriate local land charges register.
(7)
The reference in subsection (5)(b) to the time when the successor acquired the
estate in land concerned is, if the successor acquired that interest under a
disposition which took effect at law only when registered in the register of title
kept under the Land Registration Act 2002, to be read as a reference to the time
40when the disposition was made.
(8)
In subsection (5)(c) the successor’s “immediate predecessor” is, unless
subsection (9) applies, the successor’s immediate predecessor in title.
(9)
If the successor is the first holder of an estate in land which is derived from
another estate in land (whether the other estate is the qualifying estate or an
45estate derived, immediately or otherwise, from it) the successor’s immediate
predecessor is the holder of that other estate when the derived estate was
created.
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104 Benefit of obligation of responsible body
(1)
Subject to the following provisions, an obligation of the responsible body
under a conservation covenant is owed—
(a) to the landowner under the covenant, and
(b)
5to any person who becomes a successor of the landowner under the
covenant.
(2)
In this section “successor” (in relation to the landowner under the covenant)
means a person who holds, in respect of any of the land to which the obligation
relates—
(a) 10the qualifying estate, or
(b)
an estate in land derived (whether immediately or otherwise) from the
qualifying estate after the creation of the covenant.
(3)
An obligation of the responsible body under a conservation covenant ceases to
be owed to the landowner under the covenant, or to a person who becomes a
15successor of that landowner, in respect of—
(a) land which ceases to be land to which the obligation relates,
(b)
in the case of the landowner under the covenant, land in relation to
which the landowner ceases to be the holder of the qualifying estate, or
(c)
in the case of a successor, land in relation to which the successor ceases
20to be the holder of the qualifying estate or of the estate derived from the
qualifying estate, as the case may be.
(4)
Subsection (1)(b) does not apply if the obligation is ancillary to an obligation of
the landowner under the covenant which does not bind the successor.
Breach and enforcement
105 25Breach of obligation
(1)
A person bound by a negative obligation under a conservation covenant
breaches the obligation by—
(a) doing something which it prohibits, or
(b) permitting or suffering another person to do such a thing.
(2)
30A person bound by a positive obligation under a conservation covenant
breaches the obligation if it is not performed.
106 Enforcement of obligation
(1)
In proceedings for the enforcement of an obligation under a conservation
covenant, the available remedies are—
(a) 35specific performance,
(b) injunction,
(c) damages, and
(d) order for payment of an amount due under the obligation.
(2)
On an application for a remedy under subsection (1)(a) or (b), a court must, in
40considering what remedy is appropriate, take into account any public interest
in the performance of the obligation concerned.
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(3)
Subject to subsection (4), contract principles apply to damages for breach of an
obligation under a conservation covenant.
(4)
In the case of breach of an obligation of the landowner under a conservation
covenant, a court may award exemplary damages in such circumstances as it
5thinks fit.
(5)
For the purposes of the Limitation Act 1980, an action founded on an obligation
under a conservation covenant is to be treated as founded on simple contract.
107 Defences to breach of obligation
(1)
In proceedings for breach of an obligation under a conservation covenant it is
10a defence to show—
(a)
that the breach occurred as a result of a matter beyond the defendant’s
control,
(b)
that the breach occurred as a result of doing, or not doing, something in
an emergency in circumstances where it was necessary for that to be
15done, or not done, in order to prevent loss of life or injury to any person,
or
(c) that at the time of the breach—
(i)
the land to which the obligation relates was, or was within an
area, designated for a public purpose, and
(ii)
20compliance with the obligation would have involved a breach
of any statutory control applying as a result of the designation.
(2)
If the only reason for the application of subsection (1)(c) was failure to obtain
authorisation, the defendant must also show that all reasonable steps to obtain
authorisation had been taken.
(3)
25The defence under subsection (1)(c) does not apply if the designation was in
force when the conservation covenant was created.
(4)
The defence of statutory authority (which applies in relation to the
infringement of rights such as easements by a person acting under statutory
authority) applies in relation to breach of an obligation under a conservation
30covenant.
(5) In this section—
-
“authorisation” means any approval, confirmation, consent, licence,
permission or other authorisation (however described), whether
special or general; -
35“statutory control” means control imposed by provision contained in, or
having effect under, an Act.
Discharge, release and modification
108 Discharge of obligation of landowner by agreement
(1)
The responsible body under a conservation covenant and a person who holds
40the qualifying estate in respect of any of the land to which an obligation of the
landowner under the covenant relates may, by agreement, discharge from the
obligation any of the land in respect of which the person holds that estate.
(2) Subsection (3) applies to—
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(a) the responsible body under a conservation covenant, and
(b)
a person who is a successor of the landowner under the covenant by
virtue of holding an estate in land which—
(i)
is an estate in respect of any of the land to which an obligation
5of the landowner under the covenant relates, and
(ii)
is derived (whether immediately or otherwise) from the
qualifying estate.
(3)
Those persons may, by agreement, discharge the estate in land mentioned in
subsection (2)(b) from the obligation.
(4)
10Any power under this section is exercisable by agreement in writing signed by
the parties which specifies—
(a) the obligation to which the discharge relates,
(b) the land to which the discharge relates, and
(c) the estate in land by virtue of which the power is exercisable.
109 15Release of obligation of responsible body by agreement
(1)
A person to whom an obligation of the responsible body under a conservation
covenant is owed may, by agreement with the responsible body, release the
responsible body from the obligation in respect of any of the land in respect of
which the person is entitled to the benefit of the obligation.
(2)
20The power under this section is exercisable by agreement in writing signed by
the parties which specifies—
(a) the obligation to which the release relates,
(b) the land to which the release relates, and
(c) the estate in land by virtue of which the power is exercisable.
110 25Modification of obligation by agreement
(1)
A person bound by, or entitled to the benefit of, an obligation under a
conservation covenant may, by agreement with the responsible body under the
covenant, modify the obligation in its application to any of the land in respect
of which the person is bound by, or entitled to the benefit of, it.
(2)
30The power under subsection (1) does not include power to make a change
which, had it been included in the original agreement, would have prevented
the provision of the agreement that gave rise to the obligation being provision
in relation to which the conditions in section 98(2) were met.
(3)
The power under this section is exercisable by agreement in writing signed by
35the parties which specifies—
(a) the obligation to which the modification relates,
(b) the land to which the modification relates, and
(c) the estate in land by virtue of which the power is exercisable.
(4)
If an obligation under a conservation covenant is modified by an agreement
40under this section, the modification binds—
(a) the parties to the agreement, and
(b)
any person who, as respects any of the land to which the modification
relates, becomes a successor of a person bound by the modification.
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(5)
In subsection (4)(b) “successor of a person bound by the modification”, means
a person who holds, in respect of any of the land to which the modification
relates—
(a)
the estate held by the person bound by the modification when the
5modification was agreed, or
(b)
an estate in land derived (whether immediately or otherwise) from that
estate after the modification is agreed.
111 Discharge or modification of obligation by Upper Tribunal
(1)
Schedule 17 makes provision about the discharge or modification of an
10obligation under a conservation covenant on application to the Upper
Tribunal.
(2)
Where any proceedings by action or otherwise are taken to enforce an
obligation under a conservation covenant, any person against whom the
proceedings are taken may in such proceedings apply to the High Court or the
15county court for an order giving leave to apply to the Upper Tribunal under
Schedule 17 and staying the proceedings in the meantime.
(3)
No application under section 84(1) of the Law of Property Act 1925 (which
enables the Upper Tribunal on application to discharge or modify a restriction
arising under covenant or otherwise) may be made in relation to an obligation
20under a conservation covenant.
Replacement etc of responsible body
112 Power of responsible body to appoint replacement
(1)
The responsible body under a conservation covenant may appoint another
responsible body to be the responsible body under the covenant, unless the
25covenant otherwise provides.
(2)
The power under subsection (1) is exercisable by agreement in writing signed
by the appointor and appointee.
(3)
In the case of a conservation covenant registered in the local land charges
register, an appointment under subsection (1) only has effect if the appointor
30supplies to the Chief Land Registrar the information necessary to enable the
Registrar to amend the registration.
(4)
In the case of a conservation covenant relating to land in an area in relation to
which section 3 of the Local Land Charges Act 1975 does not yet have effect—
(a)
the references in subsection (3) to the local land charges register and the
35Chief Land Registrar are to the appropriate local land charges register
and the authority responsible for that register, but
(b) subsection (3) does not apply to an appointment by that authority.
(5) Appointment under subsection (1) has effect to transfer to the appointee—
(a)
the benefit of every obligation of the landowner under the conservation
40covenant, and
(b)
the burden of every obligation of the responsible body under the
covenant.
(6)
Appointment under subsection (1) does not have effect to transfer any right or
liability in respect of an existing breach of obligation.