This page created 11 June 1999
Covenants are legal agreements over private land whereby landowners agree to do or not do certain things. They are often registered against land titles.
Covenants are increasing being advocated to protect 'conservation values'. There is a useful place for conservation covenants over relatively small discrete areas where management is uncomplicated, the values at stake are not critically important, and public ownership is unwarranted.
Increasingly however covenants are being advocated as THE ALTERNATIVE to public ownership of the high country and public parks and reserves in general, and are seen by privateers, some bureaucrats and politicians, as a convenient sop to public concerns for the environment. They claim that public ownership is unnecessary. While warm fuzzies can be easily generated by outwardly sincere moves to protect 'conservation values', the insecurity of these arrangements, the lack of official will to enforce them, and the usual failure to provide public rights of use is left unsaid.
PANZ has critically reviewed the arguments and the adequacy of covenanted private land as opposed to public land (private management of the public interest?).
Also below are a variety of views about covenants.
Public Access No 10. October 1998
By Fish & Game
New Zealand Otago Manager Niall Watson
(Based on article in 'Fish & Game New Zealand' No. 7 1998)
In recent years, there has been a lot of interest in low cost methods of protecting conservation values on private land. Conservation covenants have been strongly promoted as one answer by groups such as the Queen Elizabeth II National Trust and by Government. Covenants are endorsements on land titles which bind current and future owners in specified ways and so limit the normal freedoms a private landowner enjoys. Covenants are invariably negotiated with the freeholder or lessee and applied to the land title with his or her agreement. On the face of it, they are flexible, cheap, and easily established.
Covenants fit well with Government's current policy directions, including pursuit of the market economy. Government is strengthening private property rights on a broad front and is pressing ahead with the sale of public lands wherever possible. In this context, covenants appear a blessing. The ability to pass land into private ownership and to protect natural values or provide public access through covenants suggests that you can have your cake and eat it too.
That has the potential to get many conservation and recreation lobby groups, including Fish & Game New Zealand, into a comfort zone in disputes over retaining lands in public ownership or allowing public land to be privatised. Covenants appear to be the perfect compromise.
Also, covenants have caused Fish & Came Councils to start thinking about whether they actually need to own land to protect, for example, wetlands. Instead, they could simply buy properties, apply a protective covenant to the values to be protected and on-sell them. That appears to make sense, but there are risks.
The use of covenants to protect the public interest in land is untested and early results suggest the method is not particularly durable and is open to abuse through landholder non-compliance. Public Access New Zealand's researcher, Bruce Mason, has listed a number of significant problems with covenants as follows.
The Otago experience of covenants is illustrated in three cases:
Wildlife Refuge
Fish & Game New Zealand Otago region owned a wetland property near Balclutha for many years. The area is also a gazetted wildlife refuge, has value in holding gamebirds during the hunting season as well as maintaining wetland habitat generally. The refuge was owned in conjunction with an area of farmland which was leased and generated rental income. When an adjacent wetland became available, the Council covenanted the wetland and swapped the whole property for the freehold title on the adjacent wetland. This was a good deal with low risk of drainage because the wildlife refuge is in a designated floodway.
Upland Game Hunter Access
The Council has attempted to use hunter access covenants to protect the interests of upland game hunters on Crown pastoral lease lands earmarked for freeholding. Although a model hunter access covenant has been developed, the experience so far in Otago and Nelson is that leaseholders do not like the concept. Other means of providing access are necessary.
Greenstone and Caples Valleys
The agreement to use covenants in the Greenstone and Caples valleys is part of the Ngai Tahu Treaty Settlement intended to permanently protect the public interest in the two valleys. The Settlement agreement provides for Ngai Tahu to get freehold title to the valley floors with covenants protecting the natural landscape character (Greenstone valley only) and free "wander-at-will" public foot access to both the Greenstone and Caples valley floors.
Legal opinions obtained by Fish and Game on the adequacy of covenants used in the Ngai Tahu settlement and by the QEII Trust confirmed our concerns about the Property Law Act. This over-rides covenants entered on land titles. Even when the words "binding on successors in title" provides little security for these agreements.
Covenants are not an alternative to public ownership of land. They have a relatively high risk and shouldn't be used where significant public values are at stake. But they are useful for protection of values in smaller, discrete areas that are neither difficult to protect through other means, or have less significant values present.
Covenants are still untested and some monitoring of their success rate over the next few years is warranted.
The PANZ view of covenants is that their inherent weaknesses are so great that they cannot be relied upon to ensure either protection of conservation values or on-going public access and recreation. Also under private land ownership there is no scope for public input and oversight, as there would be if public land. When covenants are used as part of tenure reviews in the high country, PANZ advocates 'securing' these under the Conservation Act so that the covenant is treated as an 'interest' in the land that DOC cannot dispose of without public process. This provides a limited measure of security, however this still does not prevent a landowner from unilaterally applying to the Courts to have a covenent modified or extinguished - Ed.
Minister of Conservation
on covenants
(in reply to letter: PANZ emphasis)
"Covenants are generally voluntary agreements between a landowner and another person or body acting as covenantee, under which the landowner agrees to restrict the use of the land in some way which will benefit the covenantee. The Crown, through my department, often acts as the covenantee to protect conservation values on privately owned land by means of conservation covenants under the Reserves or Conservation Acts. The covenant agreement is between the landowner and the Crown so the public is not a party to the agreement although covenants are often intended to protect features in the public interest.
Whether or not the public have access to these features depends on the terms of the covenant agreed with the landowner. Often access is at the discretion of the landowner and members of the public are expected to seek permission to enter the covenant area in the same way as for any other privately owned land.
There is no "covenanting authority". The covenantee in whose favour the covenant has been made can take civil action through the courts to enforce the covenant if the landowner is in breach of the terms of the agreement. If significant breaches of a covenant came to the attention of my department it would no doubt approach the landowner first, to negotiate a solution, before deciding whether or not to take legal action.
As the public is not a party to covenant agreements, the question of the enforcement of the covenant conditions must be resolved between the landowner and the covenantee. The most appropriate way for members of the public to be involved would be for them to draw their concerns to the attention of the covenantee, which would be my department in the case of Reserves or Conservation Act covenants.
Under the Property Law Act 1953, the courts do have the power to modify or extinguish a covenant, but before doing so must be satisfied that the actual circumstances of the case have changed sufficiently to justify the change. The provisions are primarily designed to provide a way of dealing with covenants between landowners that are no longer appropriate. The conditions that must be fulfilled are such that it is unlikely that a covenant to which the Crown is a party would be dealt with in this way. Because the Court action would be between the two parties involved, the public has no right to be involved although, if it considers it appropriate, the court may take into account the need to protect the public interest.
The court may serve notice of an application to modify or extinguish a covenant on a local authority or such other persons as it decides may be appropriate.
There may be reasons why a landowner may wish to imit public access to covenant areas. The land is likely to be a place of work for the purposes of the Health and Safety in Employment Act, in which case the landowner has obligations for the safety of persons on the land and closing access may be necessary...
...it is accepted that covenants
are not really the appropriate means to use to secure public access.
This is more properly done by an easement which spells out
the specific conditions under which access will be available for
the public...in the future the department intends to use easements
to secure access over private land where it considers that it
is necessary to enable the public to have access to areas of conservation
or recreation value".
[Unpublished letter to] the
Editor
Southern Rural Life
The capacity of politicians to distort the truth never fails to amaze me. The lead article of May 12 by ACT MP Owen Jennings is a case in point.
Mr Jennings claims that it was the clamours of "extreme (environmental) non-government organisations" that brought about the Crown Pastoral Land Act. Not so. Mr Jennings was present when the chairman of the Primary Production Committee told the Committee that it was the opposition to this legislation from Public Access New Zealand that deterred Government from proceeding with this Bill before the last election. We, and some other NGOs, spent years opposing this legislation, because we considered it unnecessary and dangerous. Tenure reviews were quite capable of continuing under the 1948 Land Act with no changes to the terms and conditions to pastoral leases. All our submissions said this.
In fact it was the leaders of the farming lobby that clamoured for legislative change in the hope they would gain a right to freehold everything. Apparently they, and Mr Jennings, now don't like the result of their endeavours.
However Mr Jennings was correct to state that "NGOs fought covenants", which he promotes as a means of freeholding everything instead of creating public reserves at the time of tenure review. It would be nice to think that indeed "Government caved in" to our pressure on this matter, but I doubt it. Government may have been more persuaded by the merits of the arguments against covenants, as well as by official advice. As a member of the select committee Mr Jennings would have been privy to such advice.
In brief, covenants are no substitute for public lands with statutory safeguards and public rights of use. Covenants, particularly those of the QE II Trust, are private arrangements with no public accountability or policing and minimal security. The Trust has been a dismal failure in the South Island high country. Its unsuccessful attempts to negotiate "whole property" covenants have revealed no real intent to exclude stock from sensitive areas or to provide for public rights of access. I suspect that it is such terminal shortcomings that lie behind ACT's enthusiasm for covenants.
PANZ is waiting to see the outcome of tenure reviews under the new Act but is actively contributing to the process. We are grateful for the co-operation and assistance of the runholders involved. ACT would be better to heed the advice of Government MP David Carter for lessees to enter into a review of their tenures as soon as possible. Over half already have. It is fortunate that a large majority of runholders are following their own judgement on these matters rather than be persuaded by 'lobby groups' whether they be PANZ, or political parties trying to drum up constituencies for themselves.
Bruce Mason
Public Access New Zealand
Maori Land Court's view on covenants
Extracts from Court's Minutes (our emphasis) in regard to application by Minister of Conservation for Court Order for vesting ownership of Mt Hikurangi conservation area in Ngati Porou.
[re Covenant under Section 77 Reserves Act 1977].
18 January 1991
"Firstly, encumbrances on the title separate from the legal interest. The legal interest is vested in perpetuity. You are not bound by the terms of those covenants in perpetuity. You are not precluded from changing things by agreement."
Secondly, it is a matter for the Runanga and the Department of Conservation. The conservation covenant is not a perpetually binding covenant precluding the right for further discussion. But you have got the option of going with it as it is and negotiating those things later or adjourning the matter now and discussing it further.
("Court explains in an effort to highlight the issues, that the Crown don't have to vest the land and can't be compelled to. They have the right therefore to set conditions on the vesting to maintain an involvement over aspects of use. Conditions reserving rights are negotiable in the future. Conditions may simply represent a gradual process of complete transfer. Owners urged to consider those issues but for them to decide.")
14 March 1991
"If necessary conditions
imposed can be removed. DOC has no objections."