Regulation of felling and restocking: consultation

Compliance

Key points of our proposal

• 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.

Remedial notices

The 1967 Act contains no provisions for issuing remedial notices. Instead, if restocking associated with a felling licence or felling associated with a felling direction has not been completed and the deadline for the completion passed, including any extended deadline, Forestry Commission Scotland will issue 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.

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 Scottish Ministers may give a person a remedial notice if it appears to them that the person has failed or is failing to comply with:

• a condition on felling permission;
• a felling direction (including any condition imposed on it);
• a restocking direction (including any condition imposed on it); or
• a registered remedial notice.

Not complying with a condition attached to a felling permission, felling direction or restocking direction is an offence. Serving a remedial notice does not affect whether a prosecution is pursued. A person commits a further offence if they fail to comply with the remedial notice, including any conditions attached to it. If a person fails to comply with the notice, the Scottish Ministers may enter the land to which the notice relates and take the steps or stop the activity set out in the notice. As with permissions and directions themselves, remedial notices and their conditions can be registered in the Land Register of Scotland or the General Register of Sasines.

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. 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.

Restocking directions

The 1967 Act gives powers to Forestry Commissioners to issue a restocking notice to someone who has been convicted of felling trees without a licence. A restocking notice requires the restocking of the land that has been illegally felled, or planting elsewhere to compensate for the woodland loss.

The 2018 Act gives the Scottish Ministers powers to issue a restocking direction where it appears to them that felling has been carried out and it was not:

• covered by an exemption;
• in accordance with a permission (or conditions have not been complied with);
• in accordance with a direction (felling or restocking); or
• in accordance with a remedial notice.

The issuing of a restocking direction does not rely on there having been a conviction.

A restocking direction can require a land owner to restock the land on which the felling took place (or that the conditions related to) or other land. It is an offence not to comply with a restocking direction.

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

• be notified in writing to the owner of the land;

• provide the reasons why the Scottish Ministers have concluded that the felling falls into one of the circumstances where a restocking direction can be given;
• specify the location to which the direction relates;
• specify the number of trees to be planted;
• specify the species of trees to be planted; and
• specify actions that must be taken and the dates by which the actions must be completed.

Our proposal is that conditions will be set in relation to the impacts on:

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

These could include, for example, conditions relating to:

• ground preparation;
• protection;
• restocking (densities, species and timescales);
• maintenance operations;
• reporting to the Scottish Ministers when certain activities have taken place (felling, planting);
• notifying the Scottish Ministers of an intended change in ownership;
• compliance with sustainable forest management; and
• ecological protection, e.g. timescale for felling that ensures the bird breeding season is avoided or specifying exclusion zone.

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.

Compensation for Temporary Stop Notices

Temporary Stop Notices ( TSNs) are new. They will allow the Scottish Ministers to require felling to stop on any site where they believe that felling is taking place unlawfully, allowing investigations to begin safely on site. The 2018 Act provides that compensation may be available to those who have suffered a loss as a result of a TSN, where the felling was in fact being carried out lawfully and the TSN was revoked.

Our proposal is that Regulations further stipulate that:

• Compensation will be available for losses incurred between the date of effect of the TSN and the date it was revoked.
• Applications for compensation will be made within 12 months of the date the TSN was revoked and using a form provided by the Scottish Ministers.
• 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

17. Do you agree with the proposals?

If no:

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

If yes: What and why?

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

If yes: What adjustments and why?

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

If yes: What additions and why?