Professor Benjamin J. Richardson and Sarah Brugler, University of Tasmania
We often think of nature conservation as the job of governments. Yet, private landowners can also help to create protected areas. Covenants are a unique legal tool for this purpose, and they are increasingly used in NSW.
Restrictive covenants
New South Wales has a long history of governments protecting nature through national parks and reserves, dating from 1879 when the Royal National Park was proclaimed near Sydney. In this era another tool to protect natural areas also became available — for private landowners. It’s known as a restrictive covenant, and they are created by an agreement between neighbouring landowners whereby one agrees to limit use of their property for the benefit of the other.
For example, they were used in the 1920s by the famous Australian-based American architects Walter Burley and Marion Mahoney Griffin for their design of a ‘garden suburb’ in Castlecrag, in northern Sydney. The extensive bushland Castlecrag retains is a legacy of the foresight of the Griffins to protect it through restrictive covenants a century ago.
Today, many landowners in NSW, and other parts of Australia, wish to emulate the example of the Griffins, whether they own a large or small acreage. They are likely to see land ownership as a privileged opportunity to leave a legacy for future generations. As the covenant is registered on the property title, it binds both current and future owners of this land.
Restrictive covenants, however, have some limitations. Only neighbouring landowners can create them, and only land use restrictions (eg. don’t remove trees) rather than positive land use actions (eg. plant trees) are permitted. As a result, they have in recent decades become superseded by another, more flexible tool, known generally as the ‘conservation covenant’.
Conservation Covenants in NSW
Since the 1970’s, all Australian states have introduced legislation to allow private landowners to voluntarily enter into a conservation covenant. They are created by an agreement between the landowner and a state government or authorised independent body, whereby land use controls are negotiated to safeguard biodiversity. These controls might ban land clearing, grazing livestock, constructing roads, or anything else the parties decide may be detrimental to the natural environment. The parties to the conservation covenant might also agree to undertake positive actions, such as to control weeds and pests, and restore environmentally degraded areas. In return for such efforts, these landowners may receive financial compensation along with professional assistance to help them better manage their property’s environmental values.
Today, about 7 million hectares of land in Australia are protected by covenants. Victoria has Australia’s most covenants, with about 1,700 properties, whilst Queensland has the largest area covenanted, with 4.9 million hectares conserved.
In NSW, there are now nearly 440,000 hectares of land under in-perpetuity conservation covenants (or ‘conservation agreements’ as they are referred to in NSW), covering over 1,600 properties.
These agreements are governed by the Biodiversity Conservation Act 2016 and are negotiated between landowners and the NSW Biodiversity Conservation Trust. In establishing the Trust, NSW is the only Australian state to have contributed significant funds to promote private nature conservation. Since 2017, 161 landholders have agreed to enter a conservation agreement with the Trust, many in priority areas.
Landowners in priority areas for biodiversity protection are eligible to receive funding support. This incentive has helped attract participation of landowners in agricultural landscapes where ecosystems are often under-represented in national parks. All covenants benefit from an exemption of state land tax and reduced local government rates, and some may receive concessional capital gains tax treatment.
Another benefit to participating landowners is on-the-ground support the Trust offers. In 2024, about 570 covenanted properties were visited by Trust staff and 87 events were convened by them for educating and training landowners in conservation management.
Lands under conservation covenant-type agreements are officially recognised in Australia as ‘protected areas’, and thereby included in the National Reserve System that records all types of conservation area across the country.
New Developments
The Commonwealth’s new Nature Repair Market, which began operation in 2025, offers investors the opportunity to buy biodiversity certificates generated by eligible projects that conserve or restore biodiversity. Whilst the Market is not formally linked to conservation covenants, it may one day provide a means to channel additional financial support to private landowners actively safeguarding biodiversity through covenants.
NSW’s progress in private land conservation has not been without some difficulties, however. An independent review in 2023 of the Biodiversity Conservation Act found some shortcomings in its design and implementation. In particular, the use of biodiversity ‘offsets’ – where environmental losses on one site caused by a development are supposedly offset by restoration work on another site – were identified in the review as needing better control so as to achieve ‘net positive biodiversity outcomes’. This highlights the need for broader environmental protections across the landscape, not just within protected areas.
The NSW Government’s Plan for Nature, released in 2024 in response to the latter review, envisions expanding its private land conservation program to recognise Indigenous cultural values and traditional knowledge, offering landowners more financial and management support, and strengthening legal protection of sites under conservation and other agreements to stop any incompatible land uses.
Conclusion
Not all lands are eligible for conservation covenants. Small areas of bush of just a few hectares or areas that are heavily degraded are unlikely to be suitable.
There are other options for owners of such lands, however. Land for Wildlife is a voluntary scheme for landowners to conserve wildlife and habitat, without the legal formalities of a covenant. The Biodiversity Conservation Trust also offers voluntary and lighter touch programs, including Wildlife Refuges. Another option is to participate in a local Landcare group, which can offer support for conservation actions.
The future looks promising for private land conservation, as governments in Australia recognise the crucial role that all landowners can play in protecting biodiversity outside national parks and reserves.