Regulation of felling and restocking: consultation

Felling: Applications, issuing permissions, compensation, felling directions

Key points of our proposal

• 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 process for refusal.

Effective and proportionate regulation of forestry is required to maintain appropriate woodland cover and to ensure sustainable management of Scotland’s forests. While the Forestry Act 1967 had a focus on timber production, the 2018 Act takes a broader view. Discussions with stakeholders prior to the 2018 Act indicated support for changing the focus of felling and restocking regulation to sustainable forest management principles.

Stakeholders have told us they are largely happy with the current approach to the regulation of felling, therefore our approach throughout the development of these proposals is based on current practice, unless there is an opportunity to improve the speed of processing or reduce the complexity of the process.

Registration

The most notable difference between the 2018 Act and the 1967 Act relating to felling and restocking is that the new Act sets out the Scottish Ministers’ ability to register a notice to comply with continuing conditions on felling permissions (on either the Land Register of Scotland or the General Register of Sasines). The purpose of registration is to allow any prospective new owner of land to assess any associated restocking obligations and ensure that any sustainable forestry management obligations automatically pass to future owners.

The 2018 Act allows the registration of conditions either at the point that felling is carried out or at any point during the life of the permission. We propose to use conditions on permissions to ensure that the Scottish Ministers have all of the information required to make a decision on registration on a case by case basis. This could include conditions which state that the Scottish Ministers must be informed when felling has been carried out or of imminent changes of ownership.

Applying for a permission

Current

The 1967 Forestry Act stipulates that the felling of growing trees requires a licence except where exemptions apply (see exemptions section). It also stipulates that an application for a felling licence can be submitted by those having such an estate or interest in the land on which the trees are growing as enables him, with or without the consent of any other person, to fell the trees.

There are two mechanisms for obtaining a felling licence from FCS, through the submission of either:

• a completed felling licence application form; or
• following the agreement of a Long Term Forest Plan.

Long Term Forest Plans tend to follow the format laid out in the FCS Long Term Forest Plan Applicant’s Guidance document ^[3] . Felling Licence applications are submitted on a prescribed form with signed maps which must adhere to the minimum standards set out in the 1967 Act. A decision on the application must be made by FCS within three months of receipt of the application form. All felling proposals (except for thinning) are placed on the public register ^[4] and sent out to relevant consultees for a period of 28 days.

Proposed

The 2018 Act stipulates that the felling of a tree requires felling permission from Scottish Ministers except where exemptions apply (see exemptions section). This includes felling a tree which is on Scottish Ministers’ forestry estate (which will be managed by Forestry and Land Scotland). It also stipulates that applications for felling permission may be submitted either by an owner or by an occupier of the land who has the written permission of the owner.

Our proposal is that all applications for a permission continue to include, as a minimum, the following information. This will be specified in Regulations as required information:

• Applicant name, address and phone number and, if different, owner name and address.
• Maps of the areas to be felled with each site clearly identified.
• For each site, the type of operation proposed, chosen from one of the following: clear felling, thinning, selective felling, coppicing, felling of individual trees.
• For any site where the type of operation is thinning, the pre and post thinning stocking density.
• For each site, the species to be felled, whether by naming all the main species (where ‘main species’ are those covering 20% or more of the area to be felled) or by specifying that the area comprises ‘mixed broadleaves’ or ‘mixed conifers’.
• For the whole application, the size of area which is to be felled for each species identified.
• For each site, the timescale for felling.
• For each site the proposed:
  • type of restocking (chosen from one of the following: replant the area, restock by natural regeneration, plant an alternative area, restock with coppice regrowth, restock with individual trees), which species and proportion of each species, and stocking density; or
  • if no restocking is proposed, the reasons for not restocking the site.
• For each site, whether there is a Tree Preservation Order in place or whether the site forms part of, or includes, a Conservation Area.

Application forms will be provided by the Scottish Ministers. This will ensure that any applicant can be confident, when they have completed the form, that their application complies with the minimum information requirements. Forms may ask for additional information such as woodland name, number of trees to be felled, an estimate of volume of timber and age of trees which will help to guide applicants towards providing supporting information that will help the Scottish Ministers come to swift decisions.

In addition to Long Term Forest Plan and felling permission applications we intend to develop a system of management plans for smaller scale woodlands that could encompass permissions for felling required for thinning operations.

The layout of the forms is not included as part of this consultation process but we would like to seek your opinions on the information which we will ask you to submit to us.

The process itself will remain largely unchanged:

• Timescales for each stage of the process will be set out in a customer’s charter.
• Mapping standards will be set out in guidance.
• A member of Scottish Forestry staff, normally a woodland officer, may visit the site(s) in order to assess the application. (In cases where site visits are necessary but cannot be agreed, the Scottish Ministers will not be able to make decision and therefore may reject the application.)
• Applications will continue to be subject to consultation with appropriate stakeholders such as Scottish Natural Heritage, Historic Environment Scotland, local authorities, neighbours, the local community and other interested parties. Guidance will be developed which sets out the circumstances where consultation will not be undertaken, such as for thinning proposals or where it is expedient to undertake the work without the consultation process, such as after a catastrophic wind blow event.
• In order to facilitate consultation, applications will continue to be placed on a public register for 28 days.

Issuing a permission

Current

A decision on whether an application is granted or refused is notified in writing to the applicant by FCS. If an application is refused, compensation can be applied for (see compensation section).

At the point of approval FCS sets a timescale for which the licence is valid. This is based on the information given in the application. Each case will be considered according to the type of operation. For larger projects, where a forest plan is prepared, for example, in practice this is generally 10 years.

The 1967 Act stipulates that licences will be granted unconditionally, except where it is expedient to set conditions:

• in the interests of good forestry or agriculture or the amenities of the district;
• for the purposes of complying with Forestry Commissioners’ duty of promoting the establishment and maintenance of adequate reserves of growing trees; or
• for the purpose of conserving or enhancing the flora, fauna, or geographical or physiographical features or the natural beauty or amenity of any land.

It further limits the use of conditions by requiring that any that are set under the first two purposes are:

• set after consultation with the applicant; and
• expedient for securing restocking (or stocking of other land) and the maintenance of those trees for a period not exceeding 10 years.

FCS sets the restocking period using the information provided by the applicant and with the aim of ensuring that restocking is carried out as soon as practically possible after felling. Almost all licences for clear and selective felling are currently issued with restocking conditions.

Proposed

The 2018 Act stipulates that the Scottish Ministers, when making a decision on an application, must take into account their duty to promote sustainable forest management.

Our proposal is that Regulations will additionally specify that:

• Decisions on applications will be notified in writing to the applicant, using the contact details provided on the application form. This will ensure that a clear record of decisions is available to the applicant.
• If the application has been refused, the reasons for refusal will be included in the notification. This will ensure that decisions are communicated in a transparent manner and allow applicants to address those reasons or challenge decisions.
• Following a refusal, a further application in relation to the same site will not be considered unless either:
  • the reasons for refusal have been addressed; or
  • circumstances have materially changed.
  
  This will ensure that vexatious multiple applications cannot be made, but will allow legitimate subsequent applications to be made where barriers to permission being granted are no longer in place.

Compensation is available where an application has been refused (for more details please see the compensation section).

Timescales associated with the process are not set out within Regulations, these will be set out in a customer charter.

The 2018 Act also states that conditions can set out how, when and who can carry out felling and steps that must be taken after felling is carried out. Our proposal is that conditions will be set in relation to the impacts of the felling and subsequent management of the site(s) on:

• communities or individuals;
• the environment, biodiversity or species; or
• retaining or increasing woodland cover.

These could include, for example, conditions relating to:

• restocking (ground preparation, protection, densities, species, and timescales);
• maintenance operations;
• compliance with sustainable forest management;
• reporting to the Scottish Ministers when certain activities have taken place (felling, planting); or
• notifying the Scottish Ministers of an intended change in ownership.

Conditions, and the timescales within which they must be completed, will be set on a case by case basis. To ensure consistent application guidance will set out:

• how conditions should be determined;
• how timescales will be determined;
• model conditions for any that are frequently required; and
• under what circumstances conditions may be varied or revoked.

Conditions will continue to be discussed with applicants before being set, as is current practice.

Compensation for refusal of permission

The 1967 Act provides for compensation, relating to deterioration in timber, where a felling licence has been refused. 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.

Our proposal is that Regulations further stipulate that:

• Only an applicant, or if different, an owner can apply for compensation (but not both).
• Where a person is not asking for a review of the decision, an application for compensation must be made within 12 months of the date of the refusal, using a form provided by Scottish Minister.
• Where a person has asked for a review of the decision, an application for compensation must be made within 12 months of the date that the person was notified of the outcome of the subsequent appeal, using a form provided by the Scottish Ministers.
• In the case of compensation where a refusal is overturned (for example following a successful review), compensation will only be available for losses incurred between the date of the refusal and the date on which the refusal was overturned.
• All applications will include, as a minimum, the applicant’s name and address, the location of the trees that the application relates to, and proof of costs incurred and/or the method used to calculate the loss of value in the trees.

Questions

5. Do you agree with the proposals?

If no:

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

If yes: What and why?

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

If yes: What adjustments and why?

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

If yes: What additions and why?

Felling directions

Key points of our proposal

• Conditions on felling 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.
• Felling directions will not be possible in certain places such as gardens and orchards.

The 1967 Act contains provisions for Forestry Commissioners to give directions to fell trees to the owners of those trees. Directions can be made if the Forestry Commissioners consider it expedient in the interests of good forestry, or for purposes connected with their duty of promoting the establishment and maintenance of adequate reserves of trees, that felling should take place, either to:

• prevent deterioration or further deterioration in the quality of the timber they will produce; or
• in order to improve the growth of other trees.

The deadline for the felling must not be any less than two years from when the direction takes effect.

Directions may not be given in the case of:

• fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space;
• trees on land which is subject to a forestry dedication covenant or agreement; or
• trees which are being managed to the satisfaction of the appropriate forestry authority in accordance with a plan of operations or other working plan approved by them.

The 2018 Act gives the Scottish Ministers powers to give felling directions if it appears that felling of trees is required to:

• prevent deterioration or further deterioration in the quality of timber comprised in the trees;
• improve the growth of other trees; or
• prevent or reduce harm caused by the presence of trees.

Our proposal is that Regulations will specify that felling directions may not be given in certain places. Those places are:

• Orchards
• Gardens
• Churchyards (including those that are deconsecrated)
• Burial grounds
• Public open spaces

This is in line with the proposed ‘place exemption’ described in the exemptions section.

Our proposal is that Regulations specify that a felling direction will always:

• be notified in writing to the owner of the land;
• provide reasons why Scottish Ministers are giving the felling direction;
• specify the location of the trees to be felled; and
• specify the latest date by which the felling must take place.

Our proposal is that conditions will be set in relation to the impacts of the felling and subsequent management of the site(s) on:

• communities or individuals;
• the environment, biodiversity or species; or
• retaining or increasing woodland cover.

These could include, for example, conditions relating to:

• compliance with sustainable forest management;

• restocking (ground preparation, protection, densities, species and timescales); or
• maintenance operations.

Conditions, and the timescales within which they must be completed, will be set on a case by case basis. In order to ensure consistent application of the ability to set conditions, guidance will set out:

• how conditions should be determined;
• how timescales will be determined;
• model conditions for any that are frequently required; and
• under what circumstances conditions may be varied or revoked.

Questions

9. Do you agree with the proposals?

If no:

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

If yes: What and why?

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

If yes: What adjustments and why?

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

If yes: What additions and why?