Conservation covenants are voluntary agreements entered into between a landholder and an authorised body to conserve or enhance the natural, cultural or scientific values of land. They take the form of landowners undertaking to act or to refrain from acting in relation to the specified land.

Conservation covenants have taken many statutory forms, with various bodies authorised to be a party to the covenant. The most recent legislative code for such covenants is the proposed Part VB of the Environmental Protection Amendment Bill 2020 (EP Bill).

This article outlines some of the existing conservation covenant mechanisms, and will then discuss those introduced by the EP Bill, which at the time of writing had almost completed passage through Parliament.

Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 (WA) (BC Act) provides two methods of protecting environmental values of private land: a biodiversity conservation agreement and a biodiversity conservation covenant. The major difference between the two is that biodiversity conservation agreements may bind the State or landowners to provide financial and other assistance. On the other hand, biodiversity agreement covenants are used to prevent or require action in relation to land.

Biodiversity Conservation Agreements

While not technically a covenant and operating as a type of contract, the biodiversity conservation agreement is the cousin of the biodiversity conservation covenant. If the certificate of title of land contains an endorsement or notation of the biodiversity conservation agreement, then this is binding on successive owners or occupiers.[1]

The content of biodiversity conservation agreements is nominally unrestricted, provided the covenant is for the purpose of biodiversity conservation or promotion. Generally, this subsection allows the State to promise to assist landowners. This assistance can be financial, technical or managerial, and includes the direct provision of goods and services. In return, the landowner may agree to conditions, such as to restrict their use of the land, carry out or refrain from carrying out any actions, permit access, repay money, and return goods.

The BC Act does not require biodiversity conservation agreements to run for a specific amount of time. Once the agreement is no longer needed for the purpose for which it was entered into, or is no longer capable of achieving that purpose, the Minister may cancel the agreement.[2]

Biodiversity Conservation Covenants

An owner of land may enter into a covenant with the CEO of the Department of Parks and Wildlife to set aside some or all of their land for protection, conservation, management or scientific purposes.[3] This can include taking actions such as creating and implementing a land management plan, or allowing third parties to undertake conservation efforts on the land.

Biodiversity conservation covenants can have effect for a specified time or in perpetuity. A breach of the covenant carries a fine of $2,500 for an individual or $12,500 for a body corporate.[4]

Environmental Protection Amendment Bill 2020

The EP Bill proposes changes to the Environmental Protection Act 1986 (WA) including the introduction of Part VB – Environmental Protection Covenants.

When can an environmental protection covenant be entered into?

Under the EP Bill an environmental protection covenant can be entered into in a variety of circumstances. Most involve the covenant being a condition of approval of a plan, development, change in land use or clearing permit. Each owner or occupier of the land must give written consent to the covenant under proposed section 86I. If a covenant is entered into then it may be registrable on the tile of the land.[5]

Content of the covenant

The covenant must identify the land to which it applies and each owner and occupier of said land.[6] The environmental protection covenant may contain any provisions agreed on by the CEO of the Department of Water and Environmental Regulation and the owner of the land.[7] This may, in regard to the land, include restrictions of its use, the work that may be carried out on it, or requirements for certain work to be carried out.[8]

The covenant may have a specified period of effect or continue in perpetuity. It may be expressed as irrevocable or revocable.[9]

Contravening an environmental protection covenant will be an offence by the new section 86O(1) in the EP Bill. The penalty is up to $25,000 for an individual and $125,000 for a body corporate.

[1] Environmental Protection Amendment Bill 2020, s 86K.

[2] Environmental Protection Amendment Bill 2020, s 86J(1).

[3] Environmental Protection Amendment Bill 2020, s 86J(3).

[4] Environmental Protection Amendment Bill 2020, s 86J(4).

[5] Environmental Protection Amendment Bill 2020, s 86J(5).

[6] Biodiversity Conservation Act 2016, s 118.

[7] Biodiversity Conservation Act 2016, 116(4).

[8] Biodiversity Conservation Act 2016, ss 122(1­), 112(2).

[9] Biodiversity Conservation Regulations 2018, Schedule 9.