Environment Act 2021

Deciding whether to discharge E+W

3 (1) The Upper Tribunal may exercise its power under paragraph 1(1) or 2(1) if it considers it reasonable to do so in all the circumstances of the case.

(2) In considering whether to exercise its power under paragraph 1(1) or 2(1), the matters to which the Upper Tribunal is to have regard include—

(a) whether there has been any material change of circumstance since the making of the original agreement, in particular—

(i) change in the character of the land to which the obligation relates or of the neighbourhood of that land;

(ii) change affecting the enjoyment of the land to which the obligation relates;

(iii) change affecting the extent to which performance of the obligation is, or is likely in future to be, affordable;

(iv) change affecting the extent to which performance of the obligation is, or is likely in future to be, practicable;

(b) whether the obligation serves any conservation purpose it had—

(i) when the original agreement was entered into, or

(ii) if the obligation has since been modified (whether by agreement or by the Upper Tribunal), when the obligation was modified,

as the case may be; and

(c) whether the obligation serves the public good.

(3) In considering whether to exercise its power under paragraph 1(1), the matters to which the Upper Tribunal is to have regard also include—

(a) whether any conservation purpose which the obligation in question had when the original agreement was entered into could be served equally well by an obligation relating to different land in respect of which the applicant holds a qualifying estate; and

(b) whether, if an order under paragraph 1(1) were made, such an alternative obligation could be created by means of a conservation covenant.

(4) In considering, for the purposes of this paragraph, affordability or practicability in relation to performance of an obligation, change in the personal circumstances of a person bound by the obligation is to be disregarded.

(5) In this paragraph references to the original agreement, in relation to an obligation under a conservation covenant, are to the agreement containing the provision which gave rise to the obligation.

Commencement Information

I1 Sch. 18 para. 3 not in force at Royal Assent, see s. 147(3)

I2 Sch. 18 para. 3 in force at 30.9.2022 by S.I. 2022/48, reg. 5(b)