Regulation of felling and restocking: consultation response analysis

4. Applications, issuing permissions and compensation

4.1 This chapter presents analysis of responses to the proposals for applications, permissions and compensation put forward by the Scottish Government. It describes the consultation question, number of responses, overall level of support for the proposals and any suggested removals, amendments or additions. A selection of quotes that typify the views expressed by respondents in relation to the draft proposals are incorporated within the chapter.

Overview

4.2 The 1967 Forestry Act stipulates that the felling of growing trees requires a licence except where exemptions apply. An application for a felling licence can be submitted by those having such an estate or interest (in the legal sense) in the land on which the trees are growing as enables them, with or without the consent of any other person, to fell the trees. The Act sets out the framework for permission as to whether or not an application is granted or refused; it also notes the grounds on which compensation can be applied for, if an application is refused.

4.3 The 2018 Act maintains most elements of the previous legislation on the application process. However, on compensation it goes further; the 1967 Act provided compensation, in relation to deterioration in timber where a licence was refused, while the 2018 Act provides that compensation may be available to those who have suffered a loss as a result of a refusal of permission to fell. The draft proposals include:

• Conditions on permissions will be grounded in sustainable forest management and impacts on communities and individuals; the environment, biodiversity or species; or retaining or increasing woodland cover.
• New compensation processes for refusals.

4.4 Consultation questions 5-8 asked participants for their views on the proposals with regard to applications, issuing permissions and compensation:

5. Do you agree with the proposals?

If you have answered no:

6. Would you like to see anything removed from the proposals?

7. Would you like to see adjustments made to the proposals?

8. Would you like to see anything added to the proposals?

Responses to the proposals on applications, issuing permissions and compensation

4.5 Two thirds of consultation participants responded to the questions on applications, permissions and compensation. These responses were largely positive - only 3 called for aspects of the proposals to be removed. Participants tended to focus their responses on the changes to permissions and compensation; around a third called for adjustments or additions to the proposals.

4.6 The table below provides a quantitative summary of their responses:

Question	Yes	No	Not answered	Non-specific response
5: Do you agree with the proposals?	12	13	8	4
6: Would you like to see anything removed from the proposals?	3	18	16	0
7: Would you like to see adjustments made to the proposals?	11	9	14	3
8: Would you like to see anything added to the proposals?	9	8	19	1

4.7 Calls for changes to the proposals came from:

• The 13 respondents who answered ‘no’, to indicate they did not agree with the proposals.
• 4 respondents who answered ‘yes’, to indicate they agreed with the proposals, but went on to call for adjustments within their comments.
• Four participants who did not provide a clear yes/no answer but made a relevant comment. In each of these responses there was a call to adjust the proposals.

4.8 The group who did not advocate for changes comprised:

• The 8 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 5, given they did not communicate a preference for the Scottish Government to do anything other than is suggested in the draft proposals.

4.9 Four organisations highlighted their support for particular aspects of the proposals. The Royal Society for the Protection of Birds (RSPB Scotland) noted they ‘particularly welcome the focus on sustainable forest management’. Confor said ‘We welcome the development of a Customer Charter, and trust this is done with suitable input from industry’. DWP Harvesting made a similar point.

“We welcome reference to the broader view on permissions to include the environment and sustainable forestry and/or land management. This is a recognised shift change away from a more traditional timber production focus under previous legislation. [Scottish Environment Protection Agency, SEPA]

4.10 The response from Woodland Trust Scotland noted ‘The Trust does not agree with the proposal in relation to felling, applications, issuing permissions, compensation and felling directions’. Their response included calls for adjustments within the proposals to make environmental considerations feature more highly.

Items to remove

4.11 In their response to the question on items to remove, one individual reiterated their request that the Scottish Government make no changes to the proposals at all but did not provide a rationale for this in relation to applications, permissions or compensation.

4.12 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. One said ‘it should be incumbent on the seller to advise if a forestry obligation exists on land and due diligence on the purchaser can be addressed through consultation of a historic register of felling permissions located on the Land Information Search portal’ [Individual].

4.13 Scottish Woodlands Ltd 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.

4.14 Confor 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’. They argued it is unnecessary given that applications will go on the Public Register.

Items to adjust

4.15 A common focus in comments about adjustments related to 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.

• Two participants called for the practice of asking for stocking density of trees prior to and after thinning operations to be removed.
  • One individual said: ‘A reasonable estimate and activity within the scope of good forest management or good thinning practice would be sufficient’. Another suggested ‘a more common and measurable indicator of thinning intensity is the tonnes per hectare to be removed’ [Individual].
• Confor highlighted disagreement ‘with continuing the present requirement to state pre and post stocking densities in a thinning permission application’ suggesting it has led to ‘spurious practice and unnecessary debate’. They urged the Scottish Government to provide permissions based on conditions of thinning in accordance with the principles of the Forestry Commission’s guidance on thinning^[7].
• DWP Harvesting noted ‘thinning is to be encouraged, not over‐controlled. We are therefore concerned that further guidance is proposed. That is not necessary. We wish to see simple, clear regulation set out in the Regulations’.
• DWP Harvesting also observed ‘LTFPs excepted, FCS current practice is not to grant felling licences for more than 3 years. This is restrictive on those who wish to thin woodlands on a standard 5 or 7‐year cycle. The Regulations should therefore provide for a single licence to cover a thinning programme of 5 to 7 years, where requested. In addition where, for whatever reason, approved felling or thinning has not been carried out, there should be provision for extending the dates of the licence without there needing to be a requirement to start again and to make a new licence application’.

4.16 There were also comments on the proposals in relation to restocking:

• RSPB Scotland highlighted concerns that ‘by specifying timescales for restocking, a reduction in fallow periods may be further encouraged, with the potential for an increased use of pesticides as a result. This could be seen as detrimental to sustainable forest management, and therefore contrary to the Forest and Land Management (Scotland) Act. The regulations must ensure that this situation is avoided’.
• One respondent noted: ‘This consultation document does not explicitly note or explain the change to felling licence conditions to allow felling consent to be issued without a tree restocking condition to be attached for reasons of biodiversity restoration and enhancement…It is important to retain such a provision in the new system’ [Individual].
• Castle Milk and Corrie Estates noted they ‘disagree with the Felling Licence making too specific requirements on restocking - i.e. type of ground preparation etc. Although I understand this can be done under current legislation there is a real risk that private sector foresters are forced to adopt silviculture that they may disagree with’.
• RSPB Scotland observed ‘where there is a requirement to restock a site, it is essential that on sites where there is an opportunity for habitat improvement and/ or restoration, preference is given to native woodland. Examples of such sites include Plantations on Ancient Woodland Sites (PAWS) and where native woodland will help the conservation or priority habitats and species. Any restocking with productive conifers should include buffer areas of native planting between sites where biodiversity conservation is prioritised. We are strongly opposed to the restocking of sites which were inappropriately afforested in the past (i.e. sites which would be unlikely to comply with the current UKFS requirements).’

4.17 Another 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.

4.18 There were a small number of comments on the proposed minimum information required for felling applications:

• Galloway Fisheries Trust called for the addition of a question to identify ‘whether the forest is planted on deep peats and if so what percentage of the overall forest’. This view was supported by Fisheries Management Scotland. Scottish Environment Protection Agency (SEPA) noted ‘if an application is refused for restocking on sensitive areas such as deep peat then the applicant should be directed to peatland restoration funding programmes or alternative available funding’.
• Confor said ‘We do not believe the regulations should state that all the information listed on page 14 should be a minimum requirement of every application. We would prefer an undertaking to develop guidance with industry which is more appropriate and proportionate than at present’.
• ‘The form should be simplified further so that owners can provide the basic information needed for the purpose with[out] the need for professional help’ [Individual].
• ‘We suggest that the final point of the list of information required (“whether there is a Tree Preservation Order in place or whether the site forms part of, or includes, a Conservation Area”) be extended to require that information is also provided where sites are designated for their nature conservation value, including SSSIs, SACs, SPAs and Ramsar sites’ [SNH].
• An individual asked for the application forms to include guidance ‘in relation to trees and woodlands that are protected under planning legislation (TPOs, Conservation Areas), what this means, and how applications will be treated if this other legal protection is in place’.
• Scottish Woodlands Ltd noted ‘Page 16 of the consultation document suggests that the 2018 Act will allow the inclusion of conditions with a felling approval. While this is a reasonable requirement that broadly matches existing practice, the extensive list of potential conditions noted in the document suggest a much more prescriptive process. For example, to apply a ground preparation prescription as a condition of felling seems unduly prescriptive for most felling application scenarios’.

4.19 Specific changes to the wording of the draft proposals were suggested by Scottish Wildlife Trust (SWT), on the basis of these making the application process comparable with local authority planning and/or to give greater prominence to environmental considerations. The detailed nature of these suggested edits is beyond the scope of this high-level report and have been signposted to the Scottish Government for review.

4.20 RSPB Scotland described ‘significant concerns’ about ‘the proposed use of “notices to comply” with continuing conditions on felling permissions. We believe that this will have a potentially significant negative impact on the potential for the restoration of priority habitats and also raised concerns regarding the potential to set conditions relating to “retaining or increasing woodland cover’. They believe the proposals are open to interpretation and lacking important details

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

Items to add

4.22 One individual called for ‘regulations about the maximum area of contiguous land that can be clear felled in a given time period, to start to reduce the prevalence of large scale clear fell forestry and its detrimental impact on Scotland's landscape and biodiversity’.

Other issues identified by consultation participants

4.23 Four respondents welcomed the indication that applications will be processed quickly but called for clarity around timescales for the approval of applications. RSPB Scotland highlighted ‘although we support an increase in the speed of processing applications in principle, this must not be at the expense of proper scrutiny of proposals and ensuring that all relevant issues have been given full consideration’.

4.24 A few respondents called on the Scottish Government to use the new proposals as an opportunity to bring in change. For example:

• The Health and Safety Executive (HSE) suggested that administrative arrangements for issuing permissions and directions represent an opportunity for engagement with the forestry sector on effective forestry management and safety matters.
• An individual reflected on woodland loss in Scotland through animal grazing, stating ‘at present this form of land use (destruction) is unchecked. Is it possible to protect these areas via this legislation? Do the proposals cover all aspects of felling where e.g. trees are removed for development, including renewables such as wind and hydro, where an equal area of compensatory planting should be required?’

4.25 As in other sections of this report, a small number of respondents requested a clear definition of ‘sustainable forest management’ to avoid subjective interpretation. Several respondents noted the need to demonstrate compliance with the UK Forest Standard as a widely recognised standard that many already are familiar with.

4.26 One individual expressed confusion at the proposals, saying ‘I am slightly unclear on the minimum woodland size where this application process will be relevant. As stated before I believe that even single tree felling should be subject to the process, including evaluation of solitary ancient tree status’.

4.27 SEPA expressed disappointment that they are not listed as an important consultee. They would welcome the opportunity to assist in drafting model conditions in relation to their expertise.

4.28 One respondent put a technical query to the Scottish Government. ‘We note that Registration will mean prospective new owners are aware of felling conditions and that any new owner would be subject to these conditions. Would it be the case that if a new owner received Planning Permission for the site, these conditions would then fall? Does the Registration process allow for this?’ [Aberdeenshire Council].