Felling and restocking regulations: strategic environmental assessment

2 Policy context

2.1.1 The 2005 Act requires that the Environmental Report provides an outline of the contents and the main objectives of the PPS and that it defines the plan's broader policy context, highlighting any relevant environmental protection objectives at the international, European, or national level that may influence its development and implementation. In line with the 2005 Act this section provides an overview of the Regulations, the legislative basis for the development of the Regulations and their compatibility with national development and environmental strategies which is further expanded in Appendix C.

2.1.2 The Scottish Government recognises the multiple benefits already delivered by forestry in Scotland, and is committed to ensuring it can deliver more in the future. In achieving its ambitions for forestry, the Scottish Government wants to establish a modern statutory framework, with appropriate governance and operational arrangements, to support and protect this valuable and growing sector. This section incorporates the key facts relating to the Regulations on Felling and Restocking.

2.2 Basic Details

2.2.1 The Responsible Authority for the Regulations on Felling and Restocking in Scotland is the Forestry Commission but this responsibility will pass to Scottish Ministers in April 2019 ; Forestry is the subject of the plan and the plan covers Scotland. This is a one off exercise to establish a new regulatory regime. Any reviews of forestry related activities will happen via the future reviews of the Scottish Forestry Strategy ( SFS).

2.2.2 Contact Details:

Catherine Murdoch
Natural Resources Division
Directorate for Environment and Forestry
3-G South
The Scottish Government
Victoria Quay
Edinburgh
EH6 6QQ

0131 244 6544

2.3 Objectives of the Regulations

2.3.1 The objectives of the Regulations are to support woodland management, maximise timber availability to the market, enable robust enforcement, where possible reducing the administrative burden without compromising sustainable forest management.

2.3.2 The Scottish Government wishes to allow for the continuation of the principle of domestic usage of an owner's resource, but looks to further protect ancient woodlands from the cumulative effects of felling. Therefore, the exemptions from permissions to fell set out in the Forestry Act 1967 form the basis for exemptions under the Regulations but several changes are proposed as set out in Table 1.

2.4 Requirement for the Regulations

2.4.1 The Forestry and Land Management (Scotland) Act 2018 was passed by the Scottish Parliament on 20th March 2018 and received Royal Assent on 1st May 2018.

2.4.2 The Act was the first of three principal legislative activities required to complete the devolution of forestry. It provides the legislative framework to enable delivery of a package of other policy initiatives to increase forestry's contribution to the Scottish Ministers' economic, environmental, and social ambitions.

2.4.3 Following the passage of the Act, provisions are being made to wind up the Forestry Commissioners as a cross-border public authority and to help establish new collaborative cross-border arrangements with the UK and Welsh Governments. There will also be arrangements for transferring some of the Forestry Commissioners' property and liabilities to the Scottish Ministers.

2.4.4 The activities presently delivered by the Forestry Commissioners in Scotland through Forestry Commission Scotland ( FCS) and Forest Enterprise Scotland ( FES) will be transferred to the Scottish Government. Regulatory, policy, support and grant-giving functions will transfer to Scottish Forestry, a Scottish Government Agency. Management of the Scottish Ministers' National Forest Estate will transfer to Forestry and Land Scotland, an agency of the Scottish Government.

2.4.5 As part of this it is necessary to set out procedures for the permitting of felling, ensuring restocking and for the associated procedures for appeals and compensation. Separately, the exemptions to have permission to fell will be reviewed. This SEA is concerned with these proposed changes.

2.4.6 The Forestry and Land Management (Scotland) Act sets out the requirement to obtain a felling permission in part 4, chapter 2, section 23 as follows: Offence of unauthorised felling

(1) A person commits an offence if the person fells a tree unless—

(a) the felling is exempt under section 24, or
(b) the felling is carried out in accordance with—

(i) a felling permission,
(ii) a felling direction,
(iii) a restocking direction,
(iv) a registered notice to comply,
(v) a remedial notice.

Section 24. Unauthorised Felling: Exemptions sets out that Regulations may set out exemptions to the offence of unauthorised felling by reference to particular categories of person, particular places or activities, particular circumstances and trees of particular description.

2.4.7 The proposals are the situations, or types of felling, for which a permission from the Scottish Ministers would not be required and are primarily based on the current list of exemptions from felling licence requirements under the Forestry Act 1967.

2.4.8 The Scottish Government intends to provide for continuity as the change is made from the old regime to the new one, but also wishes look to further protect ancient woodlands from the cumulative effects of felling and provide more clarity on exemptions where possible.

2.4.9 The proposed changes are where discussions with stakeholders have indicated that improvements can be made, or where the way in which the 2018 Act is drafted requires some adjustments.

2.5 Summary of the proposed changes to the exemptions

2.5.1 Currently, statutory procedures for the licensing of felling and re-stocking, and associated provisions on enforcement and appeals, are contained in the Forestry Act 1967; in The Forestry (Felling of Trees) Regulations 1979 ^[2] ; and in the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 ^[3] . Additionally, exemptions to licensing requirements are set out in Section 9 of the Forestry Act 1967 and through The Forestry (Exceptions from Restriction of Felling) Regulations 1979 ^[4] . The above mentioned procedures will remain in place in England and Wales but will no longer apply to Scotland.

2.5.2 Table 1 summarises the existing statutory provisions covering tree felling license exemptions, alongside a summary description of the regulatory changes that are anticipated. Appendices A and B detail the current exemptions within the Act and current Regulations.

2.5.3 Proposals are also being considered to update provisions for applications, permissions, directions, compensation and appeals.

2.6 Subject of the present assessment

2.6.1 Many aspects of the proposal focus solely on changes in procedure or guidance and the Regulations restate much current practice or statute and are therefore unlikely to lead to substantive changes in how felling or re-stocking is carried out in practice.

2.6.2 Therefore, during scoping, it was proposed that only those parts of the proposal with the potential to lead to significant environmental effects be subject to individual assessment, namely the exemptions (pertaining to changes to volume exemptions for ancient and semi-natural woodlands). The remaining aspects of the proposal are considered when assessing the potential for cumulative impacts to arise from the implementation of the entire suite of proposed Regulations.

2.6.3 These proposals are based on current exemptions and processes for giving consent for felling operations and requiring restocking. Changes are only proposed where

• opportunities to make improvements have been put forward by stakeholders; or
• they are required because of a fundamental change in the primary legislation (for example, because Scottish Ministers now have the ability to serve Temporary Stop Notices ^[5] for illegal felling).

2.7 Current Exemptions

2.7.1 Current provision in section 9 of the Forestry Act 1967 is that a felling licence must be obtained from the Forestry Commission to fell growing trees. There are however a number of exemptions to this general requirement, some contained within the Act itself and others prescribed in Regulations ( i.e. The Forestry (Exceptions from Restriction of Felling) Regulations 1979). These Regulations on Felling and Restocking do not deal with felling which is required under the Plant Health (Forestry) Order 2005.

2.7.2 The list of current exemptions can be broadly grouped into 'classes' where a felling licence is not required. These are based on:

• Felling of small trees, fruit trees and diseased/dying trees, including Elm affected by Dutch elm disease.
• Felling of trees in gardens, church yards and public open spaces.
• Felling trees on a small scale, with reference to the size of trees (diameter), volume of wood felled and a range of specific situations.
• Felling of trees to prevent a danger or abate a nuisance.
• Felling of trees by an electricity operator, water authority or under planning permission.

2.7.3 The above exemptions could be described as enabling:

• Felling to abate/prevent nuisances or danger, or to allow necessary operations.
• Felling in areas/locations, which would not traditionally be defined as 'woodland or forests', i.e. orchards, gardens, parks.
• Felling of timber from the land that an owner occupies (their own woodland resource) for domestic use (but realistically not sufficient for operating a business).

2.7.4 The thresholds set by the volume and diameter exemptions mean that most felling and thinning in forests and woodlands requires a licence. The current felling licence process ensures:

• The appropriate forestry authority has information as to where, when and how tree felling will occur.
• The ability to assess any potential loss of woodland resource and ensure the restocking of land after felling.

2.7.5 However, whilst technical amendments have been made since the introduction of the 1967 Act, the objectives have not significantly changed and reflect a different era of forestry practice. The 1967 Act was a consolidation of older legislation, brought together at a time when the focus was firmly on timber supply and did not seek to address other aspects of forestry that are now so familiar, such as the protection of broadleaved woodlands. Although it has been modernised, it still does not completely reflect current practice.

2.8 Forest plans and felling permission

2.8.1 The Act does not dictate how permission to fell will be granted. However it is intended that the new regime will continue with a mix of one off permissions, and Long Term Forest Plans. This flexibility provides a strong framework for delivering sustainable forest management. It provides a proportionate process for simple applications but also avoids the need for multiple permissions for larger or more complex forestry operations. This ensures that the resources required to gain permission are proportionate to the operations being carried out. Long Term Forest Plans ^[6] are also often used for gaining independent forest certification.

2.8.2 It is also intended to develop the use of management plans for smaller woodlands, such as farm woodlands, in order to cover thinning. The proposals for new Regulations largely maintain the status quo while offering flexibility for the development of new processes where there might be a need, such as the increased use of management plans.

Table 1: Proposed changes to existing exemptions

Current exemptions	Proposed changes with rationale
Small trees / Diameter threshold
The 1967 Act exempts the felling of trees with a diameter not exceeding 8 cm; in the case of coppice or underwood, with a diameter not exceeding 15 cm; or a diameter not exceeding 10 cm and the felling is carried out in order to improve the growth of other trees. It specifies that the diameter is measured over the bark at a point 1.3 m above the ground level.	The current minimum diameter threshold of 8 cm would continue to apply. However the other diameter thresholds in the Forestry Act of 10 cm for thinning and 15 cm for coppice would no longer apply. Felling of trees with a diameter of less than 8 cm at breast height would not require permission. This would continue to allow the felling, coppicing and thinning of small or young trees up to 8 cm in diameter without the need for a permission. Having only one diameter threshold simplifies understanding for all parties. The separate coppice threshold is not really relevant in Scottish conditions. The 8 cm overall threshold can be used to coppice. Adjustment to the way in which the height at which the diameter is measured is described. The proposal the diameter should be measured over the bark at 1.3 m above the base of the tree, where the base of a tree is ground level when the tree is standing.
Volume threshold
The 1967 Act exempts felling where: (i) the aggregate cubic content of the trees which are felled does not exceed five cubic metres in any quarter; and (ii) the aggregate cubic content of the trees which are sold by that person does not exceed two cubic metres in any quarter. Section 9(6) of the 1967 Act defines a quarter as the period of three months beginning with the 1st January, 1st April, 1st July or 1st October in any year.	The proposal is to maintain the effect of (i) so that felling that does not exceed five cubic metres in any quarter be exempt. It is not proposed to maintain a separate limit, (ii), for the proportion of those felled trees can be sold as the restriction does not deliver a tangible benefit in terms of maintaining woodland cover. The 5 m 3 per quarter [7] exemption is intended to support felling and thinning for small scale domestic and/or personal use and should not be used as a vehicle to achieve woodland removal. The exemption would not apply to small native woodlands defined as woodlands that are between 0.1 ha and 0.5 ha and where 50% of the canopy is comprised of stated native species [8] This would mean that native woods, particularly ancient and semi natural woodlands would require permission to fell even small volumes of timber where trees are over 8 cm diameter and therefore ensure that felling is for woodland management purposes and that the cumulative effect of the felling can be managed. Remove the current "2m 3 per quarter for sale" part of this exemption as it is of no clear policy benefit.
Dead trees and Windblow
The 1967 Act requirement for a licence only extends to the felling of growing trees. This means that no licence is required to cover the felling of trees that have been uprooted or those that are dead. The 2018 Act relies on the ordinary meaning of felling (with the addition of intentionally killing a tree, for example by ringing or poisoning) which means that, if there is no exemption, cutting down dead trees will require a 2018 Act permission. Under the Forestry Act a licence is required only for felling growing trees therefore dead and windblow trees are not licenced or subject to restocking conditions ( i.e. there is no requirement to restock), they are effectively treated as exempt. Under the new Bill, permission is required to fell all trees and so the position for dead and windblown trees needs to be clarified. As windblow typically contains a mixture of live, dead and dying trees this would not generally be exempt and would now require permission to fell and be subject to restocking conditions where appropriate.	The Scottish Government proposal is that an exemption is created for the felling of dead trees. This is new and a direct result of the way that the 2018 Act defines the felling offence. To ensure no inappropriate deforestation occurs, the clearance of trees that are seriously compromised but still alive would require a felling permission. This includes those that are partially uprooted or have suffered damage as a result of wind, those that are diseased but not yet dead, been damaged by fire, or been damaged by a person (for example by machinery being used in the area). Windblow, over 5m 3, would require a felling permission (unless all trees were fully dead). Windblow within an approved forest plan or management plan would be covered by the tolerance table [9] , enabling speedy harvesting and replanting. Post storm clearance of windblow impacting on infrastructure outwith an approved forest/management plan would need to be covered by a permission (although the immediacy of the need would mean that there would be no consultation).
Other exemptions The 1967 Act exempts the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space. Trees growing in these situations do not, generally, constitute a woodland and therefore are removed from the protection of the regime. Trees growing in these situations do not, generally, constitute a woodland. They may be subject to other protections, such as Tree Preservation Orders, and exempting them from felling regulation does not affect that protection.	Other exemptions No significant changes, but some clarification: Place Exemption Keep orchards, gardens, churchyards, Add burial grounds, Define public open space. This essentially maintains the current exemption. It is proposed to clarify the term 'public open space' as stakeholders have identified that this would be helpful. It is proposed to include burial grounds specifically as they are currently only partially catered for by virtue of churchyards being listed.
Danger or nuisance - The 1967 Act exempts felling for the prevention of danger or the prevention or abatement of a nuisance. Aerodromes - The 1979 Regulations exempt felling where the Secretary of State for Defence or the Secretary of State for Trade has certified that the tree obstructs the approach of aircraft to, or their departure from, any aerodrome or hinders the safe and efficient use of air navigational or aircraft landing installations. Aerodromes are defined as any area of land or water designed, equipped, set apart or commonly used for affording facilities for the landing and departure of aircraft.	Improved interpretation and guidance to aid regulators and owners as to when the exemptions would or would not apply. Danger or nuisance - Maintain prevention of danger but remove reference to nuisance – it is difficult to define what constitutes a nuisance and unlikely to be as urgent as, for example, the felling of a tree that is dangerous. The latter exemption would avoid delays in felling where there is an urgent need. Aerodromes - Remove the need (in the current legislation) to have the Secretary of State 'certify' that the tree(s) are interfering with an aerodrome etc. This would maintain the ability to fell without permission, but removes the need for the obstruction to be certified first.
Planning permission - The 1967 Act exempts felling which is immediately required for the purpose of carrying out development authorised by planning permission granted, or deemed to be granted, under the Town and Country Planning (Scotland) Act 1997. Scottish Planning Policy states that the planning system should protect and enhance ancient woodland as an important and irreplaceable resource together with other native or long established woods, hedgerows and individual trees. Dutch elm disease - The 1979 Regulations exempt felling of any tree of the genus Ulmus which is affected by the disease in elms caused by the fungus Ceratocystis ulmi and commonly known as Dutch elm disease to such an extent that the greater part of the crown of the tree is dead. The Electricity Act - The 1967 Act exempts felling which is carried out by, or at the request of, an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as: to obstruct or interfere with the installation, maintenance or working of the line or plant; or to constitute an unacceptable source of danger (whether to children or to other persons). Statutory undertakers - The 1979 Regulations exempt felling by 'statutory undertakers' of trees on land in their occupation which obstruct the construction of any works required for the purposes of the undertaking of those undertakers or of trees which interfere with the maintenance or operation of any works vested in those undertakers. Statutory undertakers are defined as persons authorised by any enactment to carry out any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, power or lighthouse undertaking, or any undertaking for the supply of hydraulic power or water, and public gas transporters within the meaning of Part I of the Gas Act 1986. Water Authorities / Drainage Boards - The 1979 Regulations also exempt felling by, or at the request of, a water authority established under the Water Act 1973, or an internal drainage board for the purposes of the Land Drainage Act 1976, where the tree interferes or would interfere with the exercise of any functions of that authority or board. Dedication agreements - A dedication agreement is an agreement, between a landowner and the Forestry Commissioners, that the land it applies to will be managed for forestry purposes. The 1979 Regulations exempt felling on land which is subject to a dedication agreement and: the agreement is registered in the Land Register or General Register of Sasines and binding on the owner of the land; or the land is owned by the person who entered into the agreement. The 2018 Act does not provide for new dedication agreements to be entered into, however under section 80 existing agreements will remain in place after the 1967 Act is repealed.	Maintain the status quo for felling under planning permission, dutch elm disease, the Electricity Act, statutory undertakers and water authorities or drainage boards and for dedication agreements. Specifically for Planning permission - The Scottish Government's policy on The Control of Woodland Removal, which places a strong presumption against the removal of any woodland including ancient woodland, is how these principles are articulated. It sets out that approval for woodland removal should be conditional on achieving significant net public benefits and this is reinforced in Scottish Planning Policy. Therefore in light of this the proposal is to maintain this exemption.