Part 7: Conservation Covenants Section 126: Defences to breach of obligation
Section 126 sets out defences to proceedings for breach of an obligation under a conservation covenant. These are: where the breach occurred because of something beyond the defendant’s control (subsection (1)(a)), as a result of something done in an emergency to prevent loss of life or injury (for example, to control flood water)(subsection (1)(b)), or in circumstances where it is not possible to comply with an obligation under a conservation covenant without breaching a statutory control applying as a result of the designation of the land for a public purpose (subsection (1)(c)).
	The latter defence will only be available if the land was designated for a public purpose after the conservation covenant was created (subsection (3)) and, in the event that the defence is relied on only because of a failure to obtain authorisation that would have enabled compliance with the obligation, the defendant can show that he or she took all reasonable steps to obtain such an authorisation (subsection (2)).
	For example, land may be subject to a conservation covenant which requires the landowner to carry out specified works, and the land, or part of it, may be subsequently designated as a Site of Special Scientific Interest (SSSI). The works specified in the conservation covenant are likely to damage the special interest features for the site and cannot be done without the consent of Natural England. Natural England refuses consent. If the landowner carries out the works required by the conservation covenant he or she will commit an offence under section 28P of the Wildlife and Countryside Act 1981. In these circumstances the landowner could rely on this latter defence.
	Subsection (4) provides that the defence of statutory authority applies to conservation covenants. The intention is that when a public body such as a local authority acquires, and uses, land in accordance with its statutory powers it can override a conservation covenant that binds the land, in the same way that it can override an easement affecting the land.