Regulation of felling and restocking: consultation response analysis

7. Compliance

7.1 This chapter presents analysis of responses to the proposed compliance process 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 small sample of quotes that typify the views expressed are incorporated within the chapter.

Overview

7.2 Prior to the 2018 Act, if restocking associated with a felling licence or felling associated with a felling direction had not been completed and the deadline for the completion passed, Forestry Commission Scotland issued an ‘Enforcement Notice’. This is a notice which details actions which must be completed and their associated deadlines. Failure to comply with an Enforcement Notice is an offence.

7.3 The 2018 Act lays out that a remedial notice requires the person to whom it is served to take steps or stop activities within a timescale specified in the notice. The Act also gives Scottish Ministers powers to issue a restocking direction where it appears felling has been carried out that is not covered by an exemption, or is not in accordance with a permission, a direction or a remedial notice. Finally, the Act introduces Temporary Stop Notices (TSNs) to require felling to stop on any site where they believe felling is taking place unlawfully, allowing investigations to begin safely on site.

7.4 The consultation document sets out the proposals for compliance, with key points summarised below:

• Conditions on remedial notices and restocking directions will be grounded in sustainable forest management and impacts on communities and individuals; the environment, biodiversity or species; or retaining or increasing woodland cover.
• Restocking directions will include the reasons why the restocking direction is being given.
• Temporary Stop Notice compensation will be available for losses between the day the notice is served and the day it is revoked.

7.5 Questions 17 to 20 asked participants for their views on the proposals to ensure compliance with a condition attached to a felling permission, felling direction or restocking direction:

13. Do you agree with the proposals?

If you have answered no:

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

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

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

Responses to the proposed compliance processes

7.6 Just over half of the consultation participants responded to the questions on the proposals concerning matters of compliance. These responses were largely positive. The table below provides a quantitative summary of their responses:

Question	Yes	No	Not answered	Non-specific response
17: Do you agree with the proposals?	16	5	14	2
18: Would you like to see anything removed from the proposals?	1	8	27	1
19: Would you like to see adjustments made to the proposals?	3	8	25	1
20: Would you like to see anything added to the proposals?	1	8	28	0

7.7 A small group of 3 individuals and 4 organisations called for changes to aspects of the compliance processes, typically asking for minor adjustments and clarifications. Analysis of relevant responses draws on the following:

• Explanatory comments from 3 of the 5 respondents who answered ‘no’, to indicate they did not agree with the proposals.
• 3 respondents who answered ‘yes’, to indicate they agreed with the proposals, made comments calling for specific changes to aspects of the proposed process.
• 1 respondent did not provide a clear yes/no answer but made a relevant comment.

7.8 The group who did not advocate for changes comprised:

• The 13 respondents who answered ‘yes’, to indicate they agreed with the proposals, and made no calls for change of any kind in their comment.
• The 14 respondents who did not respond to question 17, given they did not communicate a preference for the Scottish Government to do anything other than is suggested in the proposals.
• 1 respondent who did not provide a clear yes/no answer but made a supportive comment.

7.9 While most of the small number of comments focused on changes that participants urged the Scottish Government to consider, RSPB Scotland highlighted that they ‘support the proposals in principle’.

Items to remove

7.10 One respondent called for compensation element of ‘Temporary Stop Notices’ (TSNs) to be removed. They described a fear that included the possibility that compensation may mean TSNs are subsequently not used by the Forestry regulator, to avoid risk of compensation claims.

7.11 Another participant suggested there should be no Local Authority exemptions to TSNs.

7.12 One individual made a general observation that ‘the procedures seem to be unnecessarily bureaucratic!’ but did not provide any specific detail about requirements they wished to see removed.

Items to adjust

7.13 There were calls from the Scottish Wildlife Trust (SWT) for some specific adjustments to the draft proposals on compliance, asking for greater references to environmental considerations, as follows:

• ‘On page 25, last paragraph on that page, starting ‘Our proposal’, at bullet point two, insert ‘conserving and enhancing’ between ‘the’ and ‘environment’. ‘
• ‘On page 26, first paragraph. Examples are given which are relevant to 'communities or individuals' and to 'retaining or increasing woodland cover', but no example is given regarding 'the environment, biodiversity or species. This implies this aspect is less important than the others. To redress this balance, include at least one example(s), but preferably two, one on conserving and one of enhancing (proactively supporting) the environment, biodiversity or species. ‘
• ‘On page 27, first paragraph, bullet point two, insert ‘conserving and enhancing’ between ‘the and ‘environment’. We note that this time there is a biodiversity example included.’

7.14 One respondent highlighted inconsistent references to ecological protection across the various proposals set forth in the consultation document.

“ ‘Ecological protection’ is listed as a possible condition on a restocking notice which is welcomed. However, this potential condition is not specifically listed against other sections, such as felling permissions or felling directions. We recognise that general sustainable woodland management is listed against these conditions however it does appear inconsistent, particularly when felling is likely to be more ecologically disruptive, at least in the short term, than restocking [Aberdeenshire Council]

Items to add

7.15 Four respondents suggested additions to the compliance proposals. These are summarised below:

• Calls for clear statements that compliance with the UKFS should be a condition for all felling permissions and directions. RSPB Scotland stated they would be willing to contribute to the development of any future guidance, suggesting the need for it to go to public consultation before being published.
• Linked to this, another participant noted that ‘Any proposed legally binding conditions, and compliance must be quantifiable against measurable and auditable specifications and/or standards’ [Scottish Land and Estates].
• Scottish Environment Protection Agency (SEPA) highlighted issues around clarity. They suggested the need for stream-lining and harmonisation between the various proposals to avoid confusion between SEPA and landowners. They also called for a full explanation of who is the primary regulator for assessing whether permissions are being complied with, noting that an explanation could cover SEPA’s duties and those of Scottish Natural Heritage (SNH) as secondary regulators offering advice and guidance on key issues.
• Two respondents noted the need to have more reference to Environmental Impact Assessments and other relevant legislation within the compliance

“The benchmark used should be the UK Forestry Standard. [Individual]

Other relevant issues

7.16 Two respondents provided some additional comments, both relating to compensation. One participant warned against compensation, highlighting its potential costs to the Scottish taxpayer, and the chances of it becoming a ‘minefield’, suggesting it needs more thought. SSE Generation requested further detail on the limits to compensation claims for TSNs and what would be considered suitable proof of costs incurred.