Municipalities, regional districts and other organizations such as farm and conservation groups can use covenants to restrict the use of land to activities and areas of use that respect farming. Under section 219 of the Land Title Act a municipality or regional district may register a covenant on the title to land to protect specific characteristics of land in or adjacent to the ALR.
A covenant is a voluntary agreement between the landowner (often a farmer or a developer) and a covenant holder (a municipality, regional district, or non-profit organization). The landowner agrees to protect the land as contemplated in the wording of the covenant. The covenant holder has the right to monitor and enforce the covenant to make sure the landowner is using the land in accordance with the covenant. Registering the covenant on the title of the land ensure that the covenant applies to future owners and endures indefinitely.
Covenants are an important tool for ensuring that edge planning techniques are adhered to indefinitely. For example, a covenant on the parcels of residential land adjacent to ALR land can outline buffer specifications like large backyards remaining free from development and landscaping requirements such as a hedge of trees or shrubs near the edge of the property. Covenants “run with the land,” meaning they apply to whoever owns the land, thus ensuring that urban-agriculture edge mitigation measures endure over the long term.
Covenants may contain provisions specifying:
- the use of land or the use of a building on or to be erected on land;
- that land is to be built on in accordance with the covenant or is not to be built on;
- that land is not to be subdivided except in accordance with the covenant or is not to be subdivided;
- that parcels of land designated in the covenant and registered under one or more indefeasible titles are not to be sold or otherwise transferred separately;
- that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with the covenant and to the extent provided in the covenant.
“Amenity” includes any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant.
Covenants are often secured on land that is being subdivided adjacent to farm land to ensure that future activities and development of that land does not hinder the productive ability of the land in the ALR. In fact, under the Land Title Act an approving officer may reject a subdivision plan if she or he believes that the subdivision will:
(a) unreasonably interfere with farming operations on adjoining or reasonably adjacent properties, due to inadequate buffering or separation of the development from the farm; or
(b) unreasonably or unnecessarily increase access to land in an agricultural land reserve due to the extent or location of roads and road allowances.
Covenants also provide notice to potential buyers that the land is adjacent to farmland, which helps prevent future conflict about farming practices.
Please note that registering conservation covenants for environmental protection in the ALR requires the approval of the Agricultural Land Commission. Section 22 (2) of the Agricultural Land Commission Act states that: “A covenant that prohibits the use of agricultural land for farm purposes has no effect until approved by the Commission.” The purpose of approval by the Commission is to avoid covenants that may effectively prohibit agricultural use of ALR land and thus be inconsistent with the purpose of the Act. The Commission will approve conservation covenants that restrict farming where the terms of the covenant benefit farming and where environmental values are important.
Examples of the Use of Covenants for Agriculture
The City of Surrey may use restrictive covenants to enforce buffering requirements adjacent to agricultural land, and to provide notice for future buyers that they are purchasing in an active farming area. The covenants contain provisions that:
- prohibit where buildings and structure may be erected (e.g. in large back yards of 4000 square metres, as detailed in a map attached to the covenant);
- prohibit the owner from seeking relaxation of setback requirements from the City or Board of Variance;
- require the owner to create and maintain landscaping as detailed on a map and specified in a planting plan attached to the covenant (the plan shows where and how many different species of trees must be planted, including 2-3 metre big leaf maple, western hemlock, vine maple, western red cedar, and Douglas fir);
- require the owner/developer to post security to be held by the City until the landscaping is completed and if the landscaping is not completed to the satisfaction of the City the City may use the security to complete the landscaping;
- set a time limit for completing the landscaping and obtaining approval from the City of the landscaping (within six months of the issuance of the occupancy permit);
- require the owner to acknowledge that the lot is adjacent to active farms where some or all of the following agricultural practices may occur:
- noise from farm operations at various times of the day, including propane cannons and other devices used to deter wild life;
- farm smells and chemical sprays;
- aesthetic appearance of fields (unkempt fields, storage of materials etc.)
- light from greenhouses
For More Information:
- Subdivision Near Agriculture: A Guide for Approving Officers (Agricultural Land Commission and Ministry of Agriculture, Fisheries and Food) – Appendix 2 consists of four sample covenants for the protection of agriculture.
- Greening Your Title: A Guide to Best Practices for Conservation Covenants, Second Edition (Ann Hillyer & Judy Atkins, West Coast Environmental Law 2005)
- Guidelines for Conservation Covenants in the ALR (Agricultural Land Commission)