Regulation of felling and restocking: consultation response analysis

3. Exemption on the requirement to have a permission to fell

Introduction

3.1 This chapter presents analysis of responses to the proposed exemptions put forward by the Scottish Government. It describes the consultation questions, number of responses, overall level of support for the exemptions and any suggested removals, amendments and additions.

3.2 Themes in participants’ comments about the consequences of the proposed exemptions, reflections on current practices and other issues for the Scottish Government to consider are also highlighted. A sample of quotes that typify the views expressed by respondents in relation to the proposed exemptions is included.

Overview

3.3 The consultation document sets out the situations or types of felling for which permission from the regulator is not required. These fall into two categories: continuation of existing exemptions as set out in the Forestry Act 1967; and proposed changes to exemptions, to reflect feedback from stakeholders about the opportunities for improvements afforded by the drafting of new proposals.

Situation or types of felling	Maintain existing exemptions as set out in the Forestry Act 1967	Some change to exemptions as set out in the Forestry Act 1967
Small trees		Yes
Places	Yes
Topping and lopping, trimming or laying hedges		Yes
Volume		Yes
Danger or nuisance		Yes
Compliance with Acts of Parliament	Yes
Aerodromes	Yes
Infrastructure	Yes
Planning	Yes
Dutch Elm Disease	Yes
Dedicated Agreements	Yes
Dead Trees		Yes

3.4 Questions 1-4 asked participants for their views on the proposals:

1. Do you agree with the proposed exemptions?

If no:

2. Would you like to see any of the proposed exemptions removed from the proposals?

If yes: Which ones and why?

3. Would you like to see adjustments made to any of the proposed exemptions?

If yes: What adjustments and why?

4. Would you like to see any other exemptions added to the proposals?

If yes: What additions and why?

Responses to the exemptions

3.5 Most consultation participants responded to the questions on exemptions. The table below provides a quantitative summary of their responses:

Question	Yes	No	Not answered	Non-specific response
1: Do you agree with proposed exemptions	7	17	8	5
2: Would you like to see any proposed exemptions removed?	6	17	13	1
3: Would you like to see adjustments made to any of the proposed exemptions?	17	4	12	4
4: Would you like to see any other exemptions added to the proposals?	9	11	16	1

3.6 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. This group comprised 13 individuals and 11 organisations, such as Scottish Land and Estates, Castle Milk and Corrie Estates, and Stirling Council. Just over a third of consultation respondents - 13 participants - did not advocate for any change to the exemptions.

3.7 Calls for changes to the proposed exemptions came from:

• The 17 respondents who answered ‘no’, to indicate they did not agree with the proposals.
• Two respondents who answered ‘yes’, to indicate they agreed with the proposals, but went on to call for clarifications about aspects of the exemptions within their comments.
• Five individuals who did not provide a clear yes/no answer but made a relevant comment. In each of these responses there was a call to remove, adjust or add to the exemptions.

3.8 The group who did not advocate for changes comprised:

• The 5 respondents who answered ‘yes’, to indicate they agreed with the proposals, and made no calls for change of any kind in their comment.
• The 8 respondents who did not respond to question 1, given they did not communicate a preference for the Scottish Government to do anything other than is suggested in the draft proposals.

“SSE Generation Ltd welcomes the proposal to maintain the exemption for felling… “by, or at the request of, an electricity operator” …Such an exemption is important to enable electricity generators to continue installation, maintenance or operation of a plant in a safe manner. [SSE Generation Ltd]

Removal of exemptions

3.9 The Scottish Government asked participants for views on proposed exemptions that should be removed - i.e. situations in which tree owners should be required to apply for permission to fell a tree. A common theme in comments related to the proposed exemption from the requirement to have a felling permission for dead trees. Five respondents made particular reference to this. Mixed views were evident in this group, with a strong theme of disagreement with this proposed exemption, in which participants frequently highlighted the valuable role of deadwood for small habitats and other positive biodiversity impacts. One respondent noted ‘We agree with the exemption for felling dead trees, which is a logical necessity’ [Confor].

3.10 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. For example, one participant described a sense of cultural, historic and emotional loss to people in Lockerbie, when trees that had been burned in the 1988 air disaster, but remained standing, were recently felled without consultation or regulatory process.

“We believe that public open space should NOT be exempt from requiring felling permission. We appreciate that much of this category of space is in the ownership of local authorities, but our experience is that these landowners can share the motivations of private landowners, and therefore should share the same regulatory oversight. [Woodland Trust Scotland]

Adjustments to exemptions

3.11 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 draft proposals. They felt it was unclear why this was maintained as a stand-alone category.

3.12 There was a detailed explanation from Scottish Natural Heritage on their position in relation to DED, which highlighted (i) a lack of clarity as to why it applied only to DED, (ii) sanitation of a native species could reduce the potential for disease resistance to develop (iii) that ‘the requirement for “the greater part of the crown” to be dead makes this exemption ineffective for sanitation felling as, by this stage, the vector is likely to be well-established in the surrounding environment’.

3.13 A small number of respondents urged the Scottish Government to increase the proposed volume exemption believing it to be too small, and expressed particular concerns in relation to the removal of nuisance trees. Confor stated: ‘We disagree with not maintaining the exemption for nuisance trees. There are and will continue to be many instances where individual windblown trees need to be dealt with swiftly. So long as the principles of sustainable forest management are not compromised, we see no reason not to continue the present exemption’

3.14 There were a small number of comments on the proposed Aerodromes Exemption, typically calling for greater detail. ‘It is not clear that the Scottish Government is competent to judge against this reserved regulatory area, so therefore this could be used as a way of justifying unsustainable felling’[Individual]. ‘We note and accept the removal of the need for trees obstructing aerodromes to be certified by Secretaries of State, but we suggest that it would be useful to specify how obstruction would be established, and who would be responsible for doing so’ [Scottish Natural Heritage].

3.15 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 in relation to the following aspects of the proposals:

• Definitions of ‘urgent need’, ‘garden ground’ and ‘designated open spaces’.
• Sustainable forest management and sustainable forest management practices.
• A current list of diseases where felling permission is exempt.

3.16 Other areas of confusion highlighted by various respondents included:

• With the proposed limitations on the permitted volume exemption for woodlands of high environmental value… Is the 8cm size limit for each stem of the tree or for the whole tree?... It would be prudent to clarify, and decide whether the regulations should say either "trees or any stem thereof of diameter 8cm or less" or "trees of stem of, or equivalent to, diameter 8cm or less" [Individual].
• ‘The phrase "expressly designed for use by the public" is potentially misleading, as it is the use rather than the design that sets such land aside from other land. "expressly designated" might be better…The phrase 'pose an immediate danger' is I think not in keeping with modern risk parlance. For danger to persons, the term used for exemption in the Tree Protection Order[TPO]/Conservation Area legislation - 'it is urgently necessary in the interests of safety" has a lot to commend it because it requires urgency and for the tree owner to consider alternatives to felling such as staying away from the tree’ [Individual].
• South Scotland Regional Forestry Forum challenges anyone to identify a wood in Scotland where 50% of the canopy comprises the 27 species listed. As drafted if the canopy was 51% of those species the statement would not apply. If the canopy comprised 50% of only 26 species the statement would not apply. The Forum does not think this is how government means this section to be interpreted… Are wind turbines considered to be electrical plant?’ [South Scotland Regional Forestry Forum].

Additions to exemptions

3.17 Participants were asked to identify any new exemptions they believe the Scottish Government should introduce, i.e. situations in which tree owners should not need permission to fell a tree.

3.18 Two respondents advocated for the inclusion of a new exemption to allow the removal of conifer natural regeneration present in riparian zones^[5].

3.19 One respondent asked for ‘an exemption to allow up to one hectare of any commercial conifer crop to be felled without a felling licence’ [Individual].

Comments on proposed changes to current exemptions

3.20 Much of the commentary from respondents across consultation questions 1 to 4 related to the alteration or removal of exemptions participants wish to see maintained.

Windblow

3.21 The Scottish Government’s suggestion that windblow^[6] 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 exemption removal, such as adverse commercial impacts, technical and legal disputes, the need for speed to remove windblow and the potential danger of windblow. One respondent raised concerns about the aesthetic implications associated with waiting for permission for windblow, describing it as ‘unsightly’ [Scottish Land and Estates].

“We believe it is entirely unacceptable to impose the requirement of a felling licence for the clearance of windblown trees or non-growing trees. [Scottish Land and Estates]

3.22 Other proposed changes to exemptions that the Scottish Government was urged to reconsider are described in the table below

Exemption	Specific change to existing exemption proposed by the Scottish Government	Response to the exemption
Small Trees	Change to diameter measurement for small trees, to 8cm or smaller, measured 1.3 above the base of the tree,	Three respondents suggested that 10cm would be a more realistic threshold. Their comments conveyed the view this would achieve a balance between regulating commercial felling and reducing the administration associated with seeking permissions on small scale uses of woodland. Six consultation participants called for the Scottish Government to retain the exemption for coppicing.
Volume	Removal of the exemption for small woodlands 0.1-0.5ha where the canopy comprises over 50% of certain species.	A view that this is not practical for silvicultural or commercial purposes. Belief that most small woodlands will be affected by this proposal, with serious consequences for owners. A suggestion this is highly unlikely to ‘capture small coniferous stands such as shelter belts’ [Scottish Land and Estates]. A call to remove the lower size limit in the belief it will not deter felling of small areas for development. A view that this will not have the intended effect to reduce deforestation, because ‘development related deforestation is a planning policy issue and, if the planning departments approve development, the trees on the site will be removed under planning permissions regardless and often with ministerial approval’ [Scottish Land and Estates]. A view there will be a lack of incentives to manage or plant small woodlands without exemption. Identification of administrative difficulties and costs associated with surveying, mapping and inspecting small woodlands. Mention of practical issues, such as mixed woodland where one tree falls within the list of trees for which exemption has been removed.
Nuisance	The Scottish Government do not propose to maintain an exemption for nuisance trees that are unlikely to require urgent action. The consultation document suggests that a person could reasonably apply for a permission from the Scottish Ministers.	One person argued that the requirement to obtain felling permission for a 'nuisance' tree might represent an infringement of a property right; that a person should not have to seek permission to enact their rights. Another agreed with the tightening of the exemptions proposed, noting ‘minor works could achieve the avoidance of nuisance, without the felling of the tree’ [Woodland Trust Scotland].

“We are broadly content with the proposed exemptions and particularly welcome the simplification of the definition of small trees, the inclusion of all burial grounds within the list of exempt places, and the proposal that the exemption for volume should not apply in woodland between 0.1ha and 0.5 ha where 50% of the canopy comprises native species. [Scottish Natural Heritage]

“The proposal that the 5 cubic metre exemption will not apply to felling in woodland between 0.1 and 0.5ha where 50% of the canopy comprises the listed native species is welcomed. However, some species are of a small mature size and in areas where woodland comprises of predominantly these smaller species, the practicality of monitoring and investigating breaches may be difficult and a major task for Scottish Forestry. [Individual]

Changes to terminology

3.23 A small number of respondents commented on changes to terminology between the 1967 and 2018 Acts.

3.24 The 2018 Act refers to the felling of all trees rather than the ‘growing trees’ specified in the 1967 Act. Views on the implication of this change varied, as shown in the quotes below:

• ‘The exemption for dead trees has been retained. However, the definition of what constitutes a dead tree or non-growing tree appears to have been revised. We do not support or agree with an arbitrary revision to the definition or understanding of what constitutes a dead or non-growing tree’ [Scottish Land and Estates].
• ‘We appreciate the difference the wording of The Act has made in referring to the felling of all trees rather than growing trees as per the 1967 Act’ [Confor].
• ‘The current felling regulation under Part II of the Forestry Act 1967 is for felling consent for 'growing trees' and that felling includes 'wilfully destroying it [a tree] by any means'. In relation to management of coppice this would not require any felling permission under the new proposals as coppice does not normally 'kill' a tree, therefore all and any of the proposed size thresholds proposed for coppice are invalid’ [Individual].

3.25 The South Scotland Regional Forestry Forum questions the value of shifting the language about regulation from licensing to permissions. ‘The ‘word "a permission" (from the Scottish Ministers) is used. Is this not the same as a permit and is a permit not the same as a licence? While this change comes directly from the 2018 Act it looks like a change for change's sake and does not necessarily make things more transparent, nor simpler, nor reduce the potential for inappropriate felling’.

Other issues for consideration

3.26 A small number of participants raised broader matters for the Scottish Government to consider in relation to exemptions.

• One respondent noted that ‘We also proposed pre-consultation using the existing Ancient Woodland Inventory as a tool for identifying native ancient woodland where there should be no exemptions’. [Woodland Trust Scotland]
• One participant suggested ‘although the consultation paper does not seem to mention this, there has been discussion about the 5m3 per quarter exemption referring to each property or woodland block as opposed to an exemption for an individual owner, and we support this concept, otherwise landowners with many different woodlands could be disadvantaged’ [Confor].