Regulation of felling and restocking: consultation

Introduction and background

This consultation seeks views on the proposals for regulating felling and restocking in Scotland from 1 April 2019.

Forestry contributes almost £1 billion per year to the Scottish economy and supports more than 25,000 full-time equivalent jobs. ^[1] Forests and woodland cover 18% of the land area of Scotland (approximately 1.4 million hectares). This represents 45% of the UK’s forests.

Around one third of Scotland‘s woodland cover is on the Scottish Ministers’ national forest estate. The remaining two thirds of woodland cover is land owned privately and by communities, third sector organisations and local authorities. ^[2]

Well-managed forests help the economy by providing timber and supporting tourism and other associated business opportunities. Woodlands and forests are also dynamic ecosystems that can help mitigate climate change, alleviate flooding, stabilise the soil and provide a home for wildlife. As part of a ‘natural health service’, woodlands are treasured spaces, providing physical and mental health benefits to improve the lives of people and communities.

The Forestry and Land Management (Scotland) Act 2018 (‘the 2018 Act’) is part of a continuing commitment to forestry by the Scottish Government. One of its objectives is to modernise the legislative framework for regulating forestry, reflecting the modern policy environment and introducing a regulatory regime that is more flexible, agile and better able to adapt to changes. The 2018 Act itself supports this approach by leaving much of the detail of the regulatory regime to secondary legislation, in this case Regulations, making it easier to adapt to changing circumstances than the current regime.

This consultation is part of the Scottish Government’s long running programme of engagement on the operation of the regulatory regime set out in the 2018 Act.

Change in the law

Forestry is currently regulated in Scotland by the Forestry Commissioners, according to rules set out in the Forestry Act 1967 (‘the 1967 Act’) and the Forestry (Exceptions from Restriction of Felling) Regulations 1979 (‘the 1979 Regulations’).

The Scottish Parliament recently passed the Forestry and Land Management (Scotland) Act 2018 which, amongst others things, provided for a regulatory regime including enabling powers to set out in Regulations the technical detail of how the regime will work. It also tied the regulatory function to the duty placed on the new regulator to promote sustainable forest management.

Change in the regulator

Forestry Commission Scotland ( FCS) currently carries out the role of forestry regulator on behalf of the Forestry Commissioners, while Forest Enterprise Scotland ( FES), an agency of the Forestry Commissioners, manages land on behalf of Scottish Ministers’, known as the national forest estate.

When the 2018 Act comes into force, forestry functions in Scotland will become the responsibility of the Scottish Ministers and two new agencies of the Scottish Government will be created to discharge those functions:

• Scottish Forestry will be created from FCS: forestry policy, regulatory, support and grant functions.
• Forestry and Land Scotland will be created from FES: management of the current national forest estate, with flexibility to take on management of other peoples’ land, by agreement.

Change in processes

At a national scale Scotland is committed to expanding its woodland resource, and for many years there has been a strong presumption in favour of protecting woodlands through a combination of policy and regulatory mechanisms. The primary driver for the regulation of felling will continue to be to maintain an appropriate level of woodland cover through avoiding inappropriate woodland removal and, in addition, to strengthen sustainable forest management practices. The aim of the regulatory regime is therefore to allow appropriate woodland felling, with suitable restocking, supporting the important economic activities of felling operations and helping sustainable harvesting operations to run efficiently.

The 2018 Act, like the Forestry Act 1967 (‘the 1967 Act’) that came before it, controls felling and restocking based on an offence of unauthorised felling. Any felling of trees in Scotland must therefore either be carried out:

• in accordance with a permission or direction from the regulator; or
• in a way that has been made exempt from requiring permission.

The starting point for the development of the proposals is to remain as close as possible to the current position and to make changes only where they will make the processes more transparent, simpler or reduce the potential for inappropriate deforestation. There will be no gap between the current regime and the new regime. We are separately considering arrangements for transition from one to the other, for example how existing licences will be brought over to the new regime. We will keep stakeholders informed of this work.

It is worth noting that the 2018 Act also changes the terminology and refers to permissions, rather than licences under the 1967 Act, so that is the term used throughout this consultation.

Regulation of the Scottish Ministers’ forest estate

The Forestry Act 1967 does not bind the Crown, so the Scottish Ministers’ National Forest Estate is not subject to regulation under that Act. During consultation and engagement for the 2018 Act, the case was made for a level playing-field between state- and non-state forestry. The 2018 Act binds the Crown, meaning that Scottish Ministers’ forestry holdings are not exempt from the new regulatory framework. Forestry and Land Scotland ( FLS), as a forest manager, will be subject to the same regulatory framework as other forestry managers.