Conservation covenanting programs and the Income Tax Assessment Act 1997
Landowners entering covenants under approved conservation covenanting programs may be eligible for tax concessions.
Organisations wanting to gain approval for conservation covenanting programs can apply to the Australian Government Minister for the Environment.
While a covenanting program may be approved by the Minister there are other requirements which need to be met before a conservation covenant would be eligible for tax concessions. These other requirements are set out in legislation and explanatory memorandum, both of which can be found at Australian Tax Office, Law. Land owners or covenanting organisations should seek advice from authoritative sources (e.g. Australian Tax Office, tax accountants) in order to fully understand the legislation.
Applicants seeking approval of conservation covenanting programs are required to
- complete and return an application form
- provide a copy of the conservation covenanting charter, examples of a conservation covenant, plan of management, and any relevant templates or other supporting documentation, for example, a stewardship program or excerpts from relevant legislation
- provide a submission detailing the extent to which the covenanting program meets or incorporates the Guidelines for approval of a conservation covenanting program
Applicants who gain Ministerial approval will receive an approval certificate. The certificate will be valid for up to three years. Programs wishing to continue to hold the Minister’s approval must reapply for a new certificate at the end or each approval period.
Please note: These guidelines may be reviewed from time to time. Stakeholders will be informed of proposed changes 12 months before these changes come into effect.
Please ensure that you address in detail each of the eight guidelines below (note: prompts and questions at the end of some guidelines are designed to help you formulate your response).
The main objectives of your conservation covenanting program should be to permanently protect, conserve and manage environmental values, through the use of a conservation covenanting instrument. The environmental values that are subject to a conservation covenant, under your program, should be of high significance, or quality, as determined in a national or regional context. Ideally, there should be an advisory board/technical committee/expert panel through which all conservation covenant applications are submitted for approval.
What constitutes high quality environmental value?
There are two parts to this question - namely, defining environmental value and defining what might constitute 'high quality'. In Australia, the environment is defined variously under a suite of laws and processes to suit a range of different purposes, resulting in definitions that range from narrow to broad.
The Australian Government's key environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999, defines the environment as including:
- ecosystems and their constituent parts, including people and communities; and
- natural and physical resources; and
- the qualities and characteristics of locations, places and areas, and
- the social, economic and cultural aspects of a thing mentioned in paragraph a, b or c.
The legislative amendments (of 1 October 2001) to the Income Tax Assessment Act 1997, relating to conservation covenants, were derived from a policy context that took account of the native vegetation focus of the current array of conservation covenanting programs in Australia. Therefore, at this time, for the purpose of implementing the conservation covenanting measures under the new legislation, the term 'environmental value' will focus on/apply to native vegetation, biodiversity, terrestrial ecosystems (including streams, rivers and wetlands), or native habitat with important conservation priority, as determined in a national or regional context. The Minister for the Environment reserves the right to expand this definition at any future point where warranted.
Any decision on whether the environmental values which are subject to a conservation covenant are of high significance, or quality, should be based on a number of factors, noting that the combination of factors will vary on a case-by-case basis. These factors include:
- the extent to which an area contains significant wildlife and habitat conservation values as determined in a national or regional context, or contains nationally endangered or threatened ecological communities or species;
- the extent to which an area contains wetlands of ecological significance (including international significance);
- the extent to which an area supports migratory species that are listed under the schedules of international agreements/conventions to which Australia is a signatory;
- the extent to which an area contains native vegetation or biodiversity with high State conservation priority or other special values, such as high localised endemism;
- the extent to which an area contains ecological communities or ecosystems that are under-reserved within the existing reserve system;
- continuity and context including proximity to, or location within, World Heritage and other protected areas;
- the extent to which an area is subject to levels of threat and degradation pressures, for example from surrounding land use or planned land use, weeds, feral animals, inappropriate fire management or grazing intensity;
- the potential for maintaining ecological viability and integrity of those populations, species and communities for which the land is being considered; and
- whether supplementary gains are achieved in the area of cultural heritage, soil conservation, or geodiversity, or water conservation, or air quality as a result of covenanting land with environmental value.
2. Duration and Title
To be eligible for tax concessions in accordance with section 31-5 under the Act, a conservation covenant must be permanent and should be registered on title (if registration is possible). It should be, therefore, binding on all successors in title.
- If your program also offers conservation covenants that are not permanent (e.g. that are tied to a specific timeframe), please elaborate on the circumstance under which this type of covenant might be entered into.
- How does your program differentiate between the permanent and non-permanent covenants?
- If the conservation covenant is unable to be registered on title, how is the 'permanency' requirement achieved?
3. Administering Body
The authority administering conservation covenants should be an established body that is likely to be in existence over the long term. The administering body should also be adequately resourced and capable of responding to a growing demand. It should also be pro-active in terms of seeking landholders who might wish to place covenants on areas of high conservation value. Once agreement on the terms of a covenant has been reached, there should be a capacity to register it shortly thereafter.
4. Restrictive Element
In accordance with section 31-5 (5) (a) under the Act, a conservation covenant must have the ability to restrict or prohibit certain activities on the land that could degrade the environmental values identified. These restrictions will vary on a case-by-case basis.
5. Plan of Management
The conservation covenanting program should include the requirement for a plan of management to be formulated, setting out management actions binding on, and to be carried out or adhered to by, the land owner and/or the administering body. The plan of management should be agreed between the administering body (and/or relevant government Minister) and the land owner, concurrent with the process of negotiating the conservation covenant, or within six months of the covenant being lodged. The plan of management may also specify and allow non-conservation related activities where those activities do not directly or indirectly diminish the environmental values of the land in question. The amount of detail in a management plan should vary according to the size and environmental complexity of the land in question. It should be reviewable at least every 5 years and whenever ownership changes. A mechanism must be in place to ensure that the administering body is notified, and land owners are contacted, when a property changes hands.
The administering body should have a stewardship program enabling it to provide ongoing assistance to the land owner. As part of this arrangement, a land owner should be able to access management/technical advice and assistance in return for conservation management activity. The stewardship arrangement should allow for periodic visits by the administering body, as a way of keeping in touch with the land owner and checking the condition of the land, and for special visits particularly where management problems arise or when a property changes hands. It should also allow for periodic telephone contact as a way of exchanging information and to assist in monitoring compliance. The stewardship program may provide financial assistance for specific management actions.
7. Monitoring and Compliance
The administering body should have strategies for monitoring compliance with the terms and conditions of a conservation covenant and plan of management. It should also be empowered, through legislation, to enforce the terms and conditions of a conservation covenant and plan of management. Alternatively, it should be able to apply to a Court of law for such orders as are necessary to secure compliance, or to remedy a default.
- Please describe the structures or mechanisms in place to ensure that monitoring and compliance, in relation to the terms and conditions of the conservation covenant and plan of management, is achieved.
Varying or terminating a conservation covenant should only occur with the mutual consent of the administering body and/or relevant government Minister and the land owner, and only under exceptional circumstances. However, there may also be exceptional circumstances where Ministers are able to exercise unilateral powers to terminate or vary a conservation covenant.
- Please describe the full range of circumstances under which a conservation covenant, under your program, might by varied or terminated - including circumstances where other statutes, e.g. mining legislation or local planning legislation, might have an effect.