Building Natural Capital

By | August 1, 2013

Legal protection for natural features on private land

Many private land owners have outstanding natural habitats or landscapes on their land and want to preserve that for future generations. Others engage in projects – such as restoring wetlands and planting native vegetation – to create or restore these areas. Land owners can use land covenants and other legal measures to help protect natural heritage for the future.

Legal mechanisms can be used to help protect natural, scenic, scientific, historical, spiritual and cultural features on private land. Examples are forest and bush areas, wetlands, tussock grasslands, coastlines, waterways, cultural and historical sites, and threatened species habitats.

Why put in place legal protection?

There are many good reasons to engage in environmental and biodiversity projects on your land. Adding legal protection – such as a land covenant to protect the area – can help to ensure your efforts aren’t undermined by future owners. Putting legal protections in place can also entitle you to rates relief and boost your chances of getting funding for your project.

Legal protection for natural areas is often required as a condition of obtaining subdivision consent.

So what are the options for you to protect natural areas? (See Footnote 1)

Land covenants

A land covenant is a legal agreement between the land owner and another party such as, for example, a local authority, the Department of the Conservation or the QEII National Trust. A land covenant can be entered into for the purposes of providing long-term legal protection to the natural, cultural or other values of a site. The land owner keeps ownership of their land, but the covenant is registered against the title, and it binds current and future owners. The area covered by the covenant usually needs to be defined on a survey plan.

The land covenant will contain agreed rules for the protection and management of the site. These may include restrictions on use of the land (such as preventing the erection of structures, lighting of fires or vegetation removal), requirements to fence and keep out stock, and other responsibilities. There’s usually on-going monitoring of the site. As the land owner you can have the option whether to allow public access to the land.

Different types of land covenant include:

  • Open space covenants with QEII National Trust (3,659 covenants covering 99,783ha had been registered as at 30 June 2012 (See Footnote2).
  • Conservation covenants with local authorities, the Department of Conservation or other authorised bodies under the Reserves Act or Conservation Act, and
  • Nga Whenua Rahui kawenata (for Maori land or Crown land held under a Crown lease by Maori).

Covenants may be for a fixed period or in perpetuity. Nga  Whenua Rahui kawenata may be subject to review at agreed intervals of not less than 25 years.

Other legal mechanisms

If you don’t want to establish a land covenant, there are a range of other mechanisms for protecting natural areas on your private land:

  • Land can be declared as protected private land if it meets specified criteria under the Reserves Act.
  • Management agreements for conservation purposes can be entered into with the Department of Conservation. These don’t bind future owners.
  • Maori reservations can be established under Te Ture Whenua Maori Act 1993 (Maori Land Act 1993).

Land can also be sold, exchanged or gifted for conservation purposes.

Costs and funding

In addition to land management costs (such as fencing and pest control), costs of establishing legal protection may also include application fees, survey, legal and registration costs.

A number of agencies and organisations offer funding, advice and assistance to private land owners wanting to restore and protect natural heritage and indigenous ecosystems. These include the QEII National Trust, the Department of Conservation and Ministry for the Environment (which administer various funds), Nga Whenua Rahui and local authorities. Rates relief may also be available.

If you’re interested in knowing more about protecting natural features on your land, get some advice on your options and contact us or one of the agencies listed above.

Footnote 1 = This article focuses on protection of natural areas. Other protection mechanisms exist specifically for historic and cultural sites, such as protection under the Historic Places Act.

Footnote 2 =  Annual Report 2012 Queen Elizabeth the Second National Trust, p 6.

DISCLAIMER: This article is true and accurate to the best of our and the author(s)’ knowledge. It should not be a substitute for legal advice. No liability is assumed by us or the author(s) or publisher for losses suffered by any person or organisation relying directly or indirectly on this article. Views expressed are the views of the author(s) individually and do not necessarily reflect the view of this firm. This article may not be reproduced without prior approval from us and the editor.

Copyright, NZ LAW Limited. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650.

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