Narratives of Capital versus Narratives of Community: Conservation Covenants and the Private Regulation of Land Use

Abstract

Drawing on experiences in other jurisdictions, this article takes the Law Commission’s 2014 proposals for the introduction of a ‘conservation covenant’ as occasion for reflection on the problems with utilising private law mechanisms as vehicles for furthering the collective interest in environmental protection. It argues that the certainty and security provided by private property relations may come at the expense of openness to environmental and social complexity, raising concerns regarding environmental justice. It considers how the legitimacy of any reform might be increased, arguing that fairer provision of opportunities for public involvement would be necessary to secure the promised public environmental benefits. It highlights the potential for better collection and dissemination of information about covenants and for the involvement of a more diverse range of actors in monitoring and enforcement. Overall, however, the primary role of the parties to a conservation covenant limits the extent to which it could be a suitable mechanism for setting or securing public conservation priorities.