Linda and Roger's Bunhybee Grasslands

Conservation Agreements

This is a page within Roger and Linda's Bunhybee Grasslands Web-Site.

Bunhybee Grasslands is a 49 hectare / 120 acre conservation property 35km south of Braidwood, in southern N.S.W.

You can follow through the internal links, or you may find it easier to use the Site-Map.

Bunhybee is subject to a Conservation Agreement. This page contains background information about Conservation Agreements.

There are many circumstances in which an owner may wish to protect a property, or a part of a property, and to ensure that the protection applies to all future owners, not just the next one. The reasons might be simply sentimental, or aesthetic or cultural (e.g. for gardens, or structures such as old irrigation channels, or follies). More commonly, the reasons are environmental or ecological.

Unfortunately, the law makes it very difficult to achieve that aim. A contract of sale can include a 'covenant', which can place constraints on the purchaser. But, because of a characteristic called 'privity', a contract only creates rights and duties for the people who are parties to it. Hence it is all-but impossible for a seller to bind any party more remote than the party that they sell it to.

A mechanism has been created in recent years, which has defects, but results in a better chance of achieving protection than any other available alternative. The pioneer appears to have been Victoria. Models have been implemented in some other States. In the traditions of the Australian federation, they vary considerably. The relevant one for Bunhybee is N.S.W.:

Victoria's Conservation Covenants

In 1972, the Victorian Parliament enacted the Conservation Trust Act. At s.2, the Act created a body corporate (similar to a statutory corporation) called the Trust for Nature. Most of the original statute is taken up with the rules of incorporation.

The critical section was added later (I imagine about 1986, but haven't been able to run the date to ground). At s.3A, the Act created the concept of a 'Conservation Covenant'. This is a permanent, legally-binding agreement placed on a property's title. The agreement is negotiated between Trust for Nature and the landholder.

The key text is as follows:

s. 3A(1):
The owner of any land which the Trust considers to be ecologically significant, of natural interest or beauty, of historic interest or of importance in relation to the conservation of wildlife or native plants may, subject to obtaining the Minister's approval thereof under subsection (8), enter into a covenant with the Trust which binds him as to the development or use of the land or any part thereof or the conservation or care of any bushland trees rock formations buildings or other objects on the land.

If the Registrar of Titles has made a recording of the covenant or the variation in the Register, the burden of the covenant or the covenant as so varied runs with the land concerned and the Trust may enforce the covenant against persons deriving title from that person as if it were a restrictive covenant even though it may be positive in nature or that it is not for the benefit of land of the Trust.

The Trust (and only the Trust) can enable a Conservation Covenant to arise, and the Minister can block it by not approving it, and the Registrar of Land Titles can block it by not recording it. The Trust (and only the Trust) can enforce a Conservation Covenant, and only if it has both the will and the money to do so. So its effectiveness as a legal instrument remains to be proven.

A Conservation Covenant isn't permanent, because it can be revoked ("released") or varied (s.3A(3)). But that requires the Trust and "all persons having an interest in the land" to agree, and the Minister's approval. Whether "interest" means only financial interest, or also community or environmental interest, is unclear from the section alone (and quite probably would require litigation to clarify, and it's unclear to me whether individuals and organisations having community and environmental interest would have standing before the court). Despite these reservations, this was a valuable step forward! I haven't come across anything yet that explains who was responsible, and what predecessors the idea built on.

The Trust has two further functions:

The organisation's FAQs said (in March 2009) that "Trust for Nature achieved its first Conservation Covenant in 1987. Trust for Nature now has more than 800 Conservation Covenants, protecting more than 35,000 hectares across Victoria".

Under s.3B, it is possible for the Trust to ask the Minister to provide the land-owner of a property with relief from land tax and rates.

NSW's Conservation Agreements

There appear to be two threads to the approach in N.S.W.

In 2001, the NSW Parliament enacted the Nature Conservation Trust Act. This created a body corporate, and defined its objects and powers. The Nature Conservation Trust (hereafter NCT) can enter into agreements with landholders (ss.30-33), the agreement is binding on 'successors in title' (s.37 – including purchasers, inheritors and mortgagees in possession), and the Registrar is required to enter agreements against the title (s.36). NCT provides details here. Like the Victorian trust, NCT operates a Revolving Fund, although this commenced only in 2003.

Under s.35, "A Trust agreement may be varied by a subsequent agreement between the parties to the agreement". At first blush, this appears to be a defect in the legislation, because it seems to preclude any variation to the agreement after the demise of the original landholder – which is presumably not what was intended.

The government's general information page on Conservation Agreements is maintained by the Dept of Environment and Climate Change (DECC). It indicates its sub-agency National Parks & Wildlife Service (NPWS) as the organisation that works with landholders to negotiate CAs, and it doesn't mention the Nature Conservation Trust.

The authority is ss.69A-69KA of the National Parks and Wildlife Act, which were inserted in 1987. The provisions are broadly similar to those in the Nature Conservation Trust Act (and include the same apparent flaw as was noted above in relation to the NCT Act); but there is sufficient difference to at least cause confusion, and possibly enough to create a conflict of laws.

A Conservation Agreement is the highest of three levels of arrangement that landholders can enter into under the NPWS's Conservation Partners Program, the intermediate level being a Wildlife Refuge, and the lowest level Property Registration including the Land for Wildlife and Conserve Wildlife schemes.

A property that is subject to a Conservation Agreement is exempt from land tax. But this can be difficult to discover, and landowners have to know that they can present this as the reason for objecting to a land tax assessment. (The Office for State Revenue – OSR does not draw attention to the fact on relevant forms, and has actively refused to do so. Perhaps, in another tradition of the Australian federation, the Treasury bureaucrats are at war with other agencies over the matter). The legal authority is s.10(p1) of the Land Tax Management Act, which exempts "land that is the subject of a conservation agreement under the National Parks and Wildlife Act 1974, or a trust agreement registered as referred to in section 36 of the Nature Conservation Trust Act 2001, being in either case an agreement that remains in force in perpetuity".

Queensland's Conservation Agreements

Queensland also has a non-statutory organisation, also called Trust for Nature. It administers what are called Conservation Agreements, but it appears that these may be far less than the Vic/NSW model, provide no protection, and be only at the level of a NSW Wildlife Refuge.

Tasmania's Conservation Covenants

Tasmania has a not-for-profit organisation called the Tasmanian Land Conservancy, which has similar purposes to the organisations in other States that are listed above.

The concept of Conservation Covenants was established by the Nature Conservation Act in 2002. However, it appears that they are negotiated with, and administered by, the Dept of Primary Industry rather than the not-for-profit organisation.

This is a page within the Bunhybee Grasslands Web-Site, home-page here, and site-map here

Contact: Linda or Roger

Created: 22 March 2009; Last Amended: 27 March 2009