Monitoring and review
Monitoring how the protected area is managed and regularly reviewing management practices are critical to the success of statutory covenants.
A landholder cannot be expected to maintain a commitment to a covenant unless the covenantee also meets their obligations, a primary one of which is to provide relevant information and advice. The covenantee should therefore contact the landholder at least every year, and carry out site visits and monitoring at the same time.
If there is a management plan, it should be reviewed at least every five years. Ideally, covenant conditions should be reviewed only when the objectives for managing the site are revised to permit a change in land use.
Ensuring continuity
Experience indicates that most landholders are conscientious about meeting the objectives of a covenant. However, factors resulting in changed management practices (e.g. staff changes, access to finance, skills and knowledge, weather cycles and market factors) can occur in the long term.
Covenantor obligations should therefore be designed to take landholders’ motivations over the long term into account, and mechanisms developed to ensure that the objectives of the covenant continue to be met.
Covenantee agencies should try to anticipate changes in motivation and attempt to resolve any issues as they emerge (e.g. by contacting the new landholder immediately when land subject to a covenant changes hands, to develop an understanding of their management objectives and help ensure ongoing stewardship).
Rewarding good performance
When a landholder receives ongoing payments to help with the cost of complying with a covenant, where practical, these should be tied to reporting on performance (e.g. a payment might be based on the continuing presence of a particular species of flora or fauna in an area protected by a covenant). This gives the landholder a strong incentive to report and seek advice on problems as they emerge. Where possible, external assessment should complement self-assessment.
Providing additional assistance
Where a covenantor reports a management problem, the covenantee could consider rewarding rather than penalising the landholder by providing some form of assistance, (e.g. by helping with eradication if a significant weed problem emerges).
Clearly, it would be necessary to develop criteria for when assistance would be appropriate. Unless it was part of a district-wide scheme, this type of intervention would be inappropriate if the landholder had an existing commitment for control.
Covenantees should consider using a range of capacity-building mechanisms to strengthen landholders' long-term commitment, for example, by producing information sheets and/or newsletters.
Enforcing regulations
It is critically important that standards are enforced if they have been set, and penalties should be imposed when a landholder breaks the conditions of the statutory covenant without seeking advice from the covenantee or notifying them that they are having problems.
Penalties and rehabilitation
Penalties associated with breaching covenants are best tied to the costs of any rehabilitation works required on the site. In this way, the landholder will be unable to wilfully break the conditions of an agreement for financial gain, because full rehabilitation of the site will preclude any development of the land. Many statutory covenants include remedy for non-compliance in the attached schedule containing the covenantor's obligations.
Renegotiating a covenant
If under genuinely difficult circumstances a landholder feels unable to meet the conditions of the statutory covenant, they should be able to renegotiate it with the contracting agency. Failing this, the Property Law Act 1974, s. 181, provides authority for a covenantor to apply to the Supreme Court to modify or extinguish covenants under exceptional circumstances.
Maintaining covenant records
Covenantee agencies should develop and maintain a system for recording details of all statutory covenants. This will be useful for maintaining regular contact with landholders, conducting inspections and tracking amendments to any management plans.
Mechanisms to monitor any changes occurring to the property should be developed, (e.g. an initial property inspection report could be used as a ‘benchmark’, followed by reports of periodic inspections over time). Photographs could be taken from recorded GPS points and used to add value to the reports.
Last updated: 22 July 2009