Regulation of felling and restocking: consultation response analysis

Executive Summary

i. This report presents an analysis of responses to the Scottish Government’s public consultation on the regulation of felling and restocking^[1].

ii. The consultation received 37 responses from 18 individuals and 19 organisations.

Exemption on the requirement to have a permission to fell

iii. The majority view is for a reconsideration of aspects of some exemptions, typically in relation to adjustments to the exemptions put forward by the Scottish Government. Approximately two thirds of consultation respondents - 24 participants - identified exemptions to remove, adjust or add.

iv. A common theme in comments related to the proposed exemption from the requirement to have a felling permission for dead trees. A small number of participants expressed dismay at the inclusion in the exempted category ‘places’, of trees in churchyards, burial grounds and public open spaces.

v. A small number of respondents commented on the specific reference to Dutch Elm Disease (DED). One agreed with the decision to retain the exemption but asked for inclusion of other diseased trees affected by other pathogens. A few suggested DED should be removed from the proposals. They felt it was unclear why this was maintained as a stand-alone category.

vi. A small number of respondents urged the Scottish Government to increase the volume exemption. There were a small number of comments on the proposed Aerodromes Exemption, typically calling for greater detail about the intention. A few participants described potential confusion about the interpretation of some aspects of the proposed exemptions. The Scottish Government was asked for clearer definitions and/or guidance on some aspects of the proposals.

vii. Two respondents advocated for the inclusion of a new exemption to allow the removal of conifer natural regeneration present in riparian zones^[2].

viii. The Scottish Government’s proposal that windblow^[3] be removed from exemptions received numerous negative comments and was a dominant theme across responses; 10 participants made comments on this specific issue. Respondents frequently highlighted practical difficulties they envisaged arising from the removal of the exemption, such as adverse commercial impacts, technical and legal disputes, the need for speed to remove windblow and the potential danger of windblow.

ix. A few participants also called for the Scottish Government to reconsider aspects of the new proposals, particularly requesting that exemptions for coppicing and small woodlands be retained, and for the small trees diameter to be revisited.

Applications, issuing permissions and compensation

x. Two thirds of consultation participants responded to the questions on applications, permissions and compensation. The quantitative profile of these responses in terms of the numbers that agree or disagree with the proposals was largely positive. Respondents tended to focus on the changes to permissions and compensation; around a third called for adjustments or additions to the proposals.

xi. Three participants objected to the requirement to notify an intended change of ownership, believing this will compromise commercial transactions, be costly and bureaucratic and place a strain on the Registers of Scotland.

xii. One participant suggested that the proposals added an unwelcome layer of bureaucracy for tenants and landowners, specifically objecting to the proposed requirement for a land occupier to obtain written permission from a land owner before making an application. Another described an objection to inclusion of conditions relating to the impacts of the felling and subsequent management of the site(s) on communities or individuals, arguing these are unnecessary given that applications will go on the Public Register.

xiii. A common focus in comments about adjustments related to the continuation of the application requirements in relation to thinning, calling for the Scottish Government to use the new proposals as an opportunity to make changes particularly in relation to the detail asked of applicants.

xiv. There were also comments on the proposals in relation to restocking, with some questions about timescales and environmental considerations, and others querying the level of detail asked for.

xv. Another minor theme in responses related to the proposals on consultation requirements. A small number of respondents expressed fears about the extent of consultation on applications required. There were suggestions this would be time-consuming, expensive and act as a barrier to economic activity.

xvi. There were a small number of comments on the proposed minimum information required for felling applications. There were also calls for more detail about applications for felling in specific environments, a more flexible approach to applications, greater simplicity, and guidance on specific aspects.

xvii. An environmental organisation suggested specific changes to the wording of the proposals, on the basis that these changes would make the application process comparable with those for local authority planning applications, and give greater prominence to environmental considerations. The detailed nature of these suggested edits is beyond the scope of this high-level report, and they have been signposted to the Scottish Government for review.

xviii. One participant described ‘significant concerns’ about the proposed use of “notices to comply”. They believe the proposals are open to interpretation and lacking important details.

xix. Two participants highlighted concerns about any intention to make compensatory planting a condition of felling, describing this as potentially detrimental to habitat restoration.

xx. Four respondents welcomed the indication that applications will be processed quickly but called for clarity around timescales for the approval of applications.

Felling directions

xxi. Two thirds of consultation participants responded to the questions on the felling directions. The quantitative profile of these responses in terms of the numbers that agree or disagree with the proposals was largely positive.

xxii. Seven respondents described adjustments for the Scottish Government to consider. Two suggested greater clarity is required regarding what is meant by ‘prevent or reduce harm caused by the presence of trees’. One respondent called for more clarity on the process for assessing the ‘impacts of felling’. Another said felling directions should have the flexibility to enhance as well as protect biodiversity. One noted ‘any conditions imposed should be measured against compliance with the UK Forestry Standard (UKFS) and interpreted as such by Scottish Forestry staff’.

xxiii. A few respondents repeated calls for the Scottish Government to make environmental matters more of an explicit consideration in directions. However, others focused on the impact on tree owners, with one suggesting the application of a Felling Direction needs to include the facility for some form of compensation for the woodland owner; another questioned aspects of the principles underpinning the new proposals.

Appeals

xxiv. Just over half of the consultation participants responded to the questions on the appeals process. The quantitative profile of these responses in terms of the numbers that agree or disagree with the proposals was largely positive.

xxv. Four respondents called for adjustments to the proposed appeals process. They expressed a general concern about the level of expertise of those involved in the appeals process, and stated that more information is needed on which organisations will be called upon. For example, respondents suggested that certain organisations would need to be involved depending on the topic of an appeal - stating that this aspect of the process is not currently clear.

xxvi. Three respondents called for additions to the proposed appeals process. One individual reiterated their call for specialist environmental involvement in appeals. Another expressed concerns about the lack of scope for appeals to be made by parties other than the appellant. One called for adoption of good practice carried out by Forestry Commission Scotland with reference to public consultation and involvement of statutory consultees.

xxvii. Two participants commented on timeframes for processing appeals. One highlighted it can take a long time; another expressed hope that the Scottish Government will reduce the length of time that appellants must wait for a decision.

Compliance

xxviii. Just over half of the consultation participants responded to the questions on the proposals concerning matters of compliance. The quantitative profile of these responses in terms of the numbers that agree or disagree with the proposals was largely positive.

xxix. One respondent called for the proposed compensation element of Temporary Stop Notices (TSN) to be removed. They described a fear that the compensation process may mean TSNs are not used by the Forestry regulator in order to avoid risk of compensation claims. Another participant suggested there should be no Local Authority exemptions to Temporary Stop Notices [TSN].

xxx. One organisation called for some specific adjustments to the proposals on compliance, asking for greater references to environmental considerations. Another respondent highlighted inconsistent references to ecological protection across the various proposals set forth in the consultation document.

xxxi. Four respondents suggested additions to the compliance proposals. They called for a clear statement that compliance with the UKFS should be a condition for all felling permissions and directions, and for compliance to be quantifiable against ‘measurable and auditable specifications and/or standards’. One highlighted issues around clarity, and two respondents noted the need to have more reference to Environmental Impact Assessments and other relevant legislation within the compliance.

xxxii. There were two comments on compensation. One participant warned against compensation, another requested further detail on the limits to compensation claims for Temporary Stop Notices [TSN] and what would be considered suitable proof of costs incurred.

Impact Assessments

xxxiii. Of those that did respond to the question on impact assessments, 13 agreed, 6 disagreed and 1 did not answer the yes/no question but made a general comment in relation to impact assessments. A total of 7 comments were made on the impact assessments.

xxxiv. Four participants identified issues in relation to the Business Regulatory Impact Assessment that they would like the Scottish Government to consider, with three urging the Scottish Government to retain the existing arrangements on the basis of their flexibility.

xxxv. In other parts of their consultation responses some participants described potential commercial impacts or opportunities arising from the proposals put forward. These were also considered in relation to the Business Regulatory Impact Assessment. Key themes included bureaucracy, impact on practice and additional costs.

xxxvi. Four participants commented specifically on the Strategic Environment Assessment. Two highlighted aspects that they agreed with; two identified gaps in the Strategic Environment Assessment or issues that they would like to see covered in more detail.

xxxvii. Some participants referenced environmental considerations in responses to other questions in the consultation document, typically in relation to climate, biodiversity, ecology, ancient trees and habitat.