KEY POINTS:
Q. I have been looking to buy a rural property on the outskirts of Auckland. When looking at the titles for some of these properties I have noticed that quite a few of them have Conservation Covenants under the Reserves Act 1977 registered on them. Can you tell me the purpose of these covenants and what consequences there are for property owners? I have heard the public can walk across your property and you may not be able to keep pets.
A. There are a number of different types of covenants. These include covenants under the Queen Elizabeth the Second National Trust Act 1977, Nga Whenua Rahui Kawenata (which relate to Maori land), and Reserves Act conservation covenants, which this explanation concentrates on.
Section 77 of the Reserves Act allows the Minister of Conservation, or any local authority, to agree with the land owner that the land be managed for the purposes of conservation.
Such covenants are used to protect areas of private land, for purposes such as the preservation of native vegetation, wetlands, landscape or historical features. Although they are for public benefit, they usually do not require public access to the land.
The conservation covenants you have seen registered on titles to land on the outskirts of Auckland are most likely ones that have been required by a local authority pursuant to a subdivision consent under the Resource Management Act 1991. Sometimes these covenants are in favour of the Minister of Conservation.
A conservation covenant under the Reserves Act, when registered on the title to the affected land, binds present and future owners for a specific term or, more commonly, in perpetuity. Such covenants may appeal to landowners who feel strongly about protecting the conservation values of their land for future generations. Registration provides certainty and will see conservation values protected into the future.
The conservation area will usually be defined by survey. The terms of the conservation covenant will also state what sort of protection is required for the conservation area and detail how the area will be managed to maintain or improve its conservation values.
The landowner is usually not allowed to carry out any construction or excavation, or to let any domestic dogs or cats into the protected area, and is usually required to put up and maintain fencing around the area to a required standard to prevent entry by grazing animals. Some activities may only be permitted with the council's prior written consent.
Public access is not usually required so the covenant area remains "private".
The landowner is responsible for ongoing maintenance and management of the conservation area. This will usually require more than just preserving or "locking up" up land, and responsibilities may include eradicating noxious weeds, and animals.
The covenant area should also be kept free of rubbish, and the planting of exotic species or removal of indigenous species is usually not permitted. Landowners are encouraged to promote natural regeneration of native vegetation that are a food source. In addition, the local authority will be allowed access for inspection, to ensure that the terms of the conservation covenant are being complied with.
Although the intention is for the landowners to take a willing and active role to protect these areas, the local authority does have enforcement powers, including financial penalties under the Reserves Act. It is important to read the terms of the covenant carefully and take legal advice on their effect.
While the management and protection of covenanted areas can be satisfying, it can also be challenging and costly. These factors should be considered when contemplating purchasing property which contains a covenanted area.
* The information contained in Prime Assets is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such. Specialist advice should be sought in particular matters.
