Chwilio Deddfwriaeth

Forestry and Land Management (Scotland) Act 2018

Introduction

1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Forestry and Land Management (Scotland) Act 2018. They do not form part of the Act and have not been endorsed by the Parliament.

2.These Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

The Act

3.The Act confers on the Scottish Ministers forestry and land management functions. It removes functions from the Forestry Commissioners in so far as they relate to Scotland, in preparation for integration of forestry policy, support, development and regulation into the Scottish Government.

4.Specifically, the Act:

  • Confers on the Scottish Ministers forestry functions, including a duty to promote sustainable forest management (SFM), and a duty to prepare, publish and have regard to a forestry strategy. A duty to promote SFM in exercising any of their functions is conferred on Scottish public authorities.

  • Transfers to the Scottish Ministers from Forestry Commissioners tree health and silvicultural material testing functions, in so far as they apply to Scotland.

  • Confers on the Scottish Ministers functions in relation to management of land, including forested land; enables the Scottish Ministers to enter into arrangements with other persons to manage those persons’ land on their behalf, and/or provide advice and assistance on management of land; and provides powers for the Scottish Ministers to acquire and dispose of land, including land that is part of the National Forest Estate.

  • Introduces a regulatory regime for felling trees and restocking, which replaces the regime provided for by the Forestry Act 1967. Unless an exemption applies, or the Scottish Ministers require felling to be carried out via a direction or a notice, felling must be carried out in accordance with permission granted by the Scottish Ministers.

  • Provides powers for the Scottish Ministers to support compliance with the regulatory regime for felling and restocking including powers of entry, a step-in power (which allows the Scottish Ministers to rectify a failure to comply with the regulatory regime where they have given a person notice to rectify the failing and the person has not done so) and an ability to recover expenses associated with use of the step-in power.

  • Provides general powers for the Scottish Ministers to use in carrying out their functions under the Act, including the ability to conduct research and inquiries, provide education and training and collect and publish data and statistics relating to their forestry and land management functions; to provide financial assistance; to establish corporate bodies; and to impose charges for the purposes of carrying out functions under the Act. In addition there is a duty to appoint a chief forester for the purposes of advising and assisting the Scottish Ministers in the carrying out of their functions under the Act.

  • Sets out requirements for the Scottish Ministers in making administrative arrangements for carrying out forestry and land management functions under the Act. These include a requirement to establish a single agency or two agencies; to report to Parliament before 1 April 2019 on the administrative arrangements they intend to make; and to report to Parliament on the operation of the administrative arrangements.

The Act is part of a larger programme of work to complete devolution of forestry that includes establishing new cross-border arrangements with the UK and Welsh Governments as well as the Forestry Commissioners and Natural Resources Wales for the exercise of forestry functions currently delivered on a GB basis; and the creation – by administrative means – of new organisational structures for forestry and land management in Scotland.

Part 2 - Forestry functions

Section 2 - Sustainable forest management

5.Section 2 confers a duty on the Scottish Ministers to promote sustainable forest management (SFM). SFM is a concept recognised internationally as the management of forests according to the principles of sustainable development and achieving a balance between the three main pillars of economic, environmental and socio-cultural objectives.

6.Subsection (2) places a duty on Scottish public authorities to promote SFM in exercising any of their functions, so far as is consistent with the proper exercise of those functions.

Sections 3, 4, 5, 6, 7 - Forestry strategy

7.Sections 3, 4, 5, 6 and 7 place duties on the Scottish Ministers associated with the preparation, publication and monitoring of a forestry strategy and require them to have regard to the strategy when exercising forestry functions or related functions under the Act.

8.Under section 3(1) to (3), the Scottish Ministers must prepare a forestry strategy that sets out a vision for forestry in Scotland, their objectives, priorities and policies with respect to the promotion of SFM as well as other matters related to that. Specifically the strategy must include objectives, priorities and policies with respect to: the creation of woodland; economic development of forestry; targets for the planting of trees; the conservation and enhancement of the environment by means of SFM; the realisation of the social benefits of forestry; the acquisition and disposal of land under sections 18 to 20; and the production and supply of timber and other forest products. Section 3(4) places an obligation on the Scottish Ministers to keep the forestry strategy under review and enables them to revise it if they consider revision appropriate. Section 3(5) requires the Scottish Ministers to revise the strategy within 9 years of its publication, if they have not already done so.

9.Section 5 requires the Scottish Ministers to publish the forestry strategy and each revision of it and to lay a copy of the strategy and each revision of it before the Scottish Parliament. Subsections (3) and (4) require the Scottish Ministers, when publishing the strategy and each revision of it, to also publish and lay before the Scottish Parliament a report setting out the consultation process undertaken to comply with the requirements under section 4(1)(a) and the ways in which views expressed during the consultation process have been taken into account.

10.Section 4(1)(a) introduces consultation requirements in the preparation of the forestry strategy and each revision. Section 4(1)(b) requires the Scottish Ministers to have regard to specified matters listed at (i) to (v) when preparing or revising the forestry strategy. Section 4(2) requires the Scottish Ministers to prepare and revise the strategy with a view to achieving consistency, so far as practicable, between the objectives, priorities and policies set out in the strategy and their other functions.

11.The Scottish Ministers must have regard to the forestry strategy when complying with their duty to promote SFM and in exercising certain functions under the Act as specified in section 6. These include functions in relation to tree health and silvicultural material testing, managing forested land, acquiring land, disposing of forested land, or exercising certain of their general powers under Part 5 for the purpose of or in connection with those functions.

12.Section 7 introduces monitoring requirements in relation to the forestry strategy. It requires the Scottish Ministers to prepare and publish a report setting out matters specified in subsection (1) and to lay a copy of each report before the Scottish Parliament. Reports are required at the end of a reporting period, defined at subsection (3) as three years beginning with the day on which the strategy was last published and each subsequent period of 3 years.

Section 8 – Duty to make arrangements for research

13.Section 8 places a duty on the Scottish Ministers to make arrangements for the carrying out of research in relation to matters relevant to their duty under section 2(1) to promote SFM.

Sections 9 and 10 - Tree health and silvicultural material testing functions

14.Sections 9 and 10 have the effect of transferring to the Scottish Ministers from Forestry Commissioners responsibility for the exercise of functions in or as regards Scotland relating to the testing of silvicultural propagating and planting material and tree health under, respectively, the Plant Varieties and Seeds Act 1964 and the Plant Health Act 1967.

Part 3 - Management of land by Scottish Ministers

15.Part 3 makes provision for the Scottish Ministers to manage land for the purpose of promoting SFM (section 11) (in relation to forested land) or furthering the achievement of sustainable development (section 15) (in relation to certain other non-forested land), and provides a framework of powers for managing land for those purposes.

Sections 11, 12 and 13 - Management of forested land

16.Section 11(1) places a duty on the Scottish Ministers to manage forested land (as defined in section 12 as read with section 13) in a way that promotes SFM. This includes, as set out in section 11(2), the use of forested land for economic development, the conservation and enhancement of the environment and the realisation of the social benefits of forestry (which links back to certain of the requirements included in the forestry strategy under section 3(3)).

17.Section 11(3) qualifies the application of that section in the case where Scottish Ministers have entered into arrangements with other persons for the management of forested land, in accordance with the power in section 17(1). Section 17(4) provides for the application of section 11 in relation to that land to be subject to the terms of those arrangements.

18.Section 12 defines “forested land” for the purposes of the Act. Subsection (2) provides that “forested” includes undergoing afforestation.

19.Subsection (1)(a) of that definition refers to land in the national forest estate that is forested. The national forest estate is defined in section 13 as land in Scotland that was at the disposal of the Forestry Commissioners under the Forestry Act 1967 immediately before the date on which the section comes into force, and that is, for the time being, owned by the Scottish Ministers. The definition of the national forest estate also has relevance for section 20 (power to dispose of land).

20.Subsection (1)(b) of the definition of forested land refers to other forested land which is either owned by the Scottish Ministers or managed by them on behalf of another person. This provision is intended to capture forested land owned by the Scottish Ministers that is not part of the national forest estate, and forested land belonging to another person that the Scottish Ministers manage, for example, in accordance with arrangements under section 17(1).

Section 14 – Forestry information

21.Section 14 introduces a duty on the Scottish Ministers to publish information on forestry. Subsections (1) and (2) provide that information on forest holdings in Scotland that do not fall within the meaning of forested land at section 12 must be gathered and published by the Scottish Ministers in such a manner as they consider appropriate, and that the information must include in particular information on the area and proprietorship of the forest holdings. Subsection (5) sets timescales for the publication of information under section 14.

22.Subsections (3) and (4) enable the Scottish Ministers to make regulations to make further provision about the information to be gathered for the purposes of section 14, and provide that the regulations may make provision about the form of information to be gathered. Section 76(1)(a) provides that regulations under section 14(3) are subject to negative procedure.

Section 15 - Management of land to further sustainable development

23.Section 15(1) requires the Scottish Ministers to manage the land specified in subsection (2) for the purpose of furthering the achievement of sustainable development. This applies to (a) land in the national forest estate (defined at section 13) that is not forested; and (b) other land that is not forested that is (i) owned by the Scottish Ministers having been acquired under section 18(1) or section 19(1); (ii) managed by the Scottish Ministers having been acquired under section 18(1) or 19(1); or (iii) managed by the Scottish Ministers in accordance with arrangements entered into under section 17(1) for the purpose of the duty in subsection (1).

24.Section 15(3) qualifies the application of section 15 in the case where the Scottish Ministers have entered into arrangements with other persons for the management of land in accordance with section 17(1). Section 17(4) provides for the application of section 15 in relation to that land to be subject to the terms of those arrangements.

Section 16 - Duty to publish map of land managed by the Scottish Ministers

25.Section 16 requires the Scottish Ministers to publish a map of land that they are, for the time being, managing as forested land (under the section 11 duty and as defined in section 12), or for the purposes of furthering sustainable development (under the section 15 duty and as specified in section 15(2)).

Section 17 - Power to enter into arrangements

26.Section 17(1) and (2) respectively provide that the Scottish Ministers may, for the purposes of managing land under section 11 or 15 enter into arrangements with any person for the management of land or for the provision of advice or assistance in relation to the management of land. These arrangements can be with any person, whether a natural or legal person, including private and public bodies.

27.Arrangements allowing Scottish Ministers to manage land (reached under section 17(1)) must be for the purposes of section 11 (management of forested land to promote SFM) or 15 (management of land to further the achievement of sustainable development). The precise scope and terms of such arrangements will be a matter for agreement between the Scottish Ministers and the relevant person.

28.Further to paragraphs 18 and 25, although the Scottish Ministers’ duties are subject to the terms of any arrangement agreed it is not possible for the terms of an arrangement to oust the duties to manage the land to promote SFM (section 11) or to further the achievement of sustainable development (section 15).

Sections 18, 19 and 20 - Acquisition and disposal of land

29.Section 18 confers powers on the Scottish Ministers to acquire land—

(a)

for the purpose of managing that land in a way that promotes SFM; or

(b)

for that land to be managed for the purpose of furthering the achievement of sustainable development.

30.Section 18 enables the Scottish Ministers to acquire land by agreement where they consider it appropriate to do so, and provides that the power includes the power (a) to purchase, or enter into a lease for, land; (b) to accept land as a gift; and (c) to acquire any interest or right in or over land.

31.Section 19(1) provides the Scottish Ministers with powers to compulsorily acquire land for the purpose of managing that land in a way that promotes SFM. Section 19(3) provides that the power of compulsory purchase includes the power to acquire any right or interest in or over the land, or to acquire a servitude or other right in or over the land by the creation of a new right.

32.By virtue of paragraph 1 of schedule 1, the provisions of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 concerning the making and confirming of compulsory purchase orders will apply to the compulsory acquisition of land under section 19(1) similar to the exercise of powers to compulsorily acquire land by the Scottish Ministers or other public bodies under other enactments.

33.However, the power of compulsory acquisition at section 19(1) does not allow the Scottish Ministers to acquire land that they manage by virtue of an arrangement under section 17(1). Nor does it apply to land that is subject to a forestry dedication agreement (as defined in section 78 by reference to section 5 of the Forestry Act 1967) and which is being managed in accordance with a plan of operations approved by the Scottish Ministers for the purposes of that agreement.

34.Forestry dedication agreements (FDA) were used by the Forestry Commissioners prior to 1981 as a means of promoting forestry. An FDA is a binding legal agreement between the Forestry Commissioners and a land owner which makes a charge on the land it covers to use that land for the growing of timber. It also binds the owner to good forestry practice (in practice, through a plan of operations approved in relation to the FDA). Agreements are recorded in the General Register of Sasines. Despite the general repeal of the Forestry Act 1967 by section 79(2) and schedule 2 of the Act, section 80 provides that this does not affect any forestry dedication agreement which is in force prior to the date on which that repeal has effect. Responsibility for FDAs and the approval of plans of operations will transfer from the Forestry Commissioners to the Scottish Ministers and existing plans of operations will be saved by virtue of an order under section 90 of the Scotland Act 1998 and regulations made under section 77(1) of the Act.

35.Finally, the power in section 19(1) does not apply to land held or used by a Minister of the Crown or a department of the Government of the United Kingdom given the reservation in paragraph 1(a) and paragraph 3(3)(c) of schedule 5 of the Scotland Act 1998.

36.Section 20(1) enables the Scottish Ministers, where they consider it appropriate to do so, to dispose of land specified in subsection (2). This land is: land in the national forest estate (as defined in section 13), other forested land they own, and land they have acquired for the purposes of furthering the achievement of sustainable development. The definition of “dispose of land” in subsection (2) includes the sale, gift or lease of land or the grant of any interest or right in or over the land. Section 6(e) provides that the Scottish Ministers must have regard to the forestry strategy when exercising the power to dispose of forested land.

37.Section 20(3) requires the Scottish Ministers to record separately funds received by them from disposal of land under section 20(1) and to use them solely for the purposes of or in connection with the carrying out of functions under the Act.

Part 4 - Felling

38.Part 4 comprises 9 chapters. An overview of the Part is provided at section 21 and a list of key terms is at section 22.

Section 23 - Offence of unauthorised felling

39.Section 23 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of unauthorised felling. Where the offence is committed in respect of more than one tree the maximum fine is to be determined as if the person had been convicted of a separate offence in respect of each tree.

40.Section 23(1)(a) and (b) set out where the offence does not apply. Under section 23(1)(a) a person is exempt from the offence if the felling is carried out in accordance with regulations made by the Scottish Ministers under section 24. Regulations under section 24 may provide that the offence does not apply to particular categories of person, particular places or activities, particular circumstances and trees of particular descriptions. Section 76(2)(a) provides that regulations under section 24(1) are subject to affirmative procedure. Under section 23(1)(b), the felling of a tree is not an offence if the felling is carried out in accordance with a felling permission (section 27), a felling direction (section 34), a restocking direction (section 36), a registered notice to comply (section 38), a remedial notice (section 54) or a registered remedial notice (section 56).

Sections 2533 - Felling permission

41.Chapter 3 of Part 4 makes provision for regulation of felling through felling permissions issued by the Scottish Ministers.

42.Section 25(1) and (2) provides for an owner or - with the written permission of an owner - an occupier of the land on which a tree is located to apply to the Scottish Ministers for permission to fell a tree. Section 25(3) enables the Scottish Ministers, by regulations, to make further provision about applications for felling permission. Regulations may include provision about the way in which applications are to be made and the information to be provided in applications. Section 76(1)(b) provides that regulations under section 25(3) are subject to negative procedure.

43.Section 26 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of knowingly or recklessly providing false or misleading information in an application for felling permission.

44.Section 27 makes provision about decisions on applications. The Scottish Ministers may grant an application (with or without conditions) or refuse an application, and must have regard to their duty (under section 2) to promote SFM in making a decision. Subsections (4), (5), (6) and (7) respectively make provision about (a) the type of conditions that can be included in a felling permission, which can include conditions setting out any steps to be taken after the felling is carried out (“continuing conditions”), (b) the ability of the Scottish Ministers to require, as a continuing condition on a felling permission, information to be provided to them, (c) specify circumstances in which conditions cannot be imposed, and (d) enable conditions to be varied or revoked. Section 27(8) provides that the Scottish Ministers can, by regulations, make further provision about decisions on applications for felling permissions. Regulations may, in particular, include provision about matters set out in subsection (9). Section 76(1)(c) provides that regulations under section 27(7) are subject to negative procedure.

45.If the Scottish Ministers refuse an application they must give reasons for the refusal (section 27(3)). Under section 32(1), a person who suffers loss as a result of the Scottish Ministers’ refusal of a felling permission is entitled to compensation in accordance with provisions made in regulations by the Scottish Ministers. Section 32(2) provides that regulations may include provision about the persons entitled to compensation, the procedure for applying, information to be provided in applications, the way in which the amount of compensation is to be determined, the way in which any disputes about compensation are to be determined, and appeals about decisions relating to compensation. Section 76(1)(d) provides that regulations under section 32(1) are subject to negative procedure.

46.Section 28 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without reasonable excuse, to comply with a continuing condition on a felling permission granted to a person.

47.Section 29 provides for the Scottish Ministers to be able to, in certain circumstances, vary a felling permission by way of a notice. Those circumstances are detailed in subsection (1) and subsection (3) sets out matters that the notice must set out or specify.

48.Section 30 provides for the Scottish Ministers to be able to, in certain circumstances, suspend a felling permission by way of a notice. Those circumstances are detailed in subsections (2) and (3) and subsection (5) sets out matters that the notice must set out or specify.

49.Section 31 provides for the Scottish Ministers to be able to, in certain circumstances, revoke a felling permission by way of a notice. Those circumstances are detailed in subsection (1) and subsection (3) sets out matters that the notice must set out and specify

50.Section 33 makes provision about the interaction between regulation of felling under the Act and tree preservation orders (TPOs) made or having effect as if made under section 160 of the Town and Country Planning (Scotland) Act 1997 (which is consequentially amended by paragraph 2 of schedule 1 of the Act). Section 33(1) enables the Scottish Ministers to refer an application to fell in respect of a tree which is covered by a TPO which requires consent for felling to the planning authority that made the TPO, or to make a decision on the application themselves. If the Scottish Ministers wish to exercise the power to decide on the application themselves they must comply with the consultation requirements at subsection (2).

51.Subsection (3) provides that where an application is referred to a planning authority, the application is to be treated as an application to the planning authority for consent to fell the tree under the TPO and the provisions of the Town and Country Planning (Scotland) Act 1997 apply. The offence of felling without permission is disapplied in circumstances where an application has been referred to a planning authority under section 33(1)(b), the authority has consented to the felling, and the felling has been carried out in accordance with that consent (subsection (4)).

52.Where a felling permission, a felling or restocking direction, a registered notice to comply, a remedial notice or a registered remedial notice exists in relation to a tree covered by a tree preservation order, felling carried out in accordance with it will not breach a TPO (subsections (5) and (6)).

Sections 34 and 35 - Felling directions

53.Chapter 4 of Part 4 makes provision for the Scottish Ministers to require felling.

54.Section 34 makes provision for the issue of directions by the Scottish Ministers requiring that trees are felled (“felling directions”). Subsections (1) and (2) set out the circumstances in which a direction can be given ((a) to prevent deterioration or further deterioration in the quality of timber of the trees, (b) to improve the growth of other trees or (c) to prevent or reduce harm caused by the presence of trees)) and the person (the owner of the land on which the trees are located) to whom a direction can be given. The Scottish Ministers must under subsection (3) have regard to their duty to promote SFM (under section 2) when deciding to give a felling direction and may vary or revoke directions including any conditions imposed on directions (subsection (5)).

55.Subsection (4) requires the Scottish Ministers to consult a planning authority before giving a felling direction in relation to a tree covered by a TPO and to have regard to any representations made by that authority. Subsection (6) enables the Scottish Ministers to, by regulations, make further provision about felling directions. Regulations may include provision about the circumstances in which a direction may not be given, requirements to be included in a direction, how directions are to be notified, and the imposition of conditions on a felling direction (which may include steps that must be taken after the direction is complied with). Section 76(1)(e) provides that regulations under section 34(6) are subject to negative procedure.

56.Section 35 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without a reasonable excuse, to comply with a felling direction (including any condition imposed on it) given to a person.

Sections 36 and 37 - Restocking directions

57.Chapter 5 of Part 4 makes provision for the Scottish Ministers to require restocking.

58.Section 36 makes provision for the issue of directions by the Scottish Ministers requiring an owner of land to stock particular land (“restocking directions”). Subsection (1) sets out the circumstances in which a direction may be given and subsection (2) provides detail on what the Scottish Ministers may require under a direction.

59.The Scottish Ministers must have regard to their duty to promote SFM (under section 2) when deciding to give a restocking direction and may vary or revoke a direction including any conditions imposed on the direction (subsections (4) and (5)). Subsections (6) and (7) make provision enabling an owner who has been served with and complies with a restocking direction to recover the costs of compliance from another person in circumstances where that other person (a) was responsible for the felling to which the restocking direction relates, or (b) failed to comply with the continuing condition on a felling permission to which the restocking direction relates.

60.Subsection (8) enables the Scottish Ministers to, by regulations, make further provision about restocking directions; regulations may include provision about the persons to whom a restocking direction may not be given, the circumstances in which a direction may not be given, requirements to be included in a direction, how directions are to be notified, and the imposition of conditions on a direction (which may include steps that must be taken after the direction is complied with). Section 76(1)(f) provides that regulations under section 36(8) are subject to negative procedure.

61.Section 37 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without a reasonable excuse, to comply with a restocking direction (including any condition imposed on it) given to a person.

Sections 38 to 44 - Continuing conditions on felling permission, felling directions and restocking directions: notices to comply, and registration of notices

62.Chapters 6 and 8 of Part 4 permit the Scottish Ministers to register certain notices.

63.Section 42 defines, for those purposes, the meaning of “register”. In respect of the notices specified at section 42(2), ‘register’ means register the information contained in a notice in the Land Register for Scotland or (as the case may be) record the notice in the General Register of Sasines. There is no statutory requirement on Scottish Ministers to register a notice. The effect of registration is that the obligations imposed by the notice may be accessed by any prospective new owner and are automatically passed to any future owners of the land to which they relate. The notices are:

(a)

a notice to comply (under section 38(2));

(b)

a notice of variation (under section 40(2));

(c)

a notice of discharge from compliance (under section 41(2));

(d)

a remedial notice (under section 56);

(e)

a notice of liability for expenses (under section 64); or

(f)

a notice of discharge of liability for expenses (under section 66(2)).

64.Section 43 makes provision about the description of land to be included in registrations of the notices set out at (a)–(f) of paragraph 64.

65.Section 38 makes provision for the Scottish Ministers to apply to register a notice to comply with a felling direction, a restocking direction or a continuing condition on felling permission (if the felling allowed by the permission has been carried out). Such a notice is called a “notice to comply”. An owner (including a new owner) who fails, without reasonable excuse, to comply with a registered notice to comply commits an offence punishable upon summary conviction by a fine of up to level 5 on the standard scale (section 39).

66.Section 40 makes provision enabling the variation of registered notices, defined at subsection (2) as a registered notice to comply or a registered remedial notice. In order to vary a registered notice—

(a)

the Scottish Ministers must agree to variation of the relevant registered notice;

(b)

all of the owners of the land must agree to variation of the relevant registered notice; and

(c)

the agreement must be in writing, and a notice (called a “notice of variation”) must be registered by the Scottish Ministers (section 40(3)). The variation only comes into effect once the notice of variation is registered (subsection (4)).

67.Section 41 requires the Scottish Ministers to apply to register a notice of discharge from compliance where—

(a)

they are satisfied that a relevant registered notice has been complied with; or

(b)

they have agreed in writing with an owner of land to which a relevant registered notice relates that the notice is to be discharged.

68.Where there is more than one owner of the land, agreement from all of the owners is not required: the Scottish Ministers may reach agreement to discharge the registered notice with any of the owners (section 41(1)(b)). The relevant registered notice is only discharged once the notice of discharge is registered.

69.Section 44 provides that the Keeper of the Registers of Scotland is not required to investigate or determine the accuracy of information contained in notices to comply, notices of variation, notices of discharge from compliance, remedial notices, notices of liability for expenses, or notices of discharge of liability for expenses.

Sections 45 to 67 - Compliance
Temporary stop notices

70.Section 45 provides for the Scottish Ministers to give “Temporary Stop Notices” (TSNs) where they have reason to believe that unauthorised felling is being carried out. Subsection (3) sets out matters that a TSN must contain and subsection (4) allows for TSNs to impose conditions. Subsection (5) allows for TSNs to be varied or revoked. Subsection (6) and (7) detail how TSNs are served. Subsections (8) and (9) detail when TSNs have effect, including limiting them to a maximum of 28 days. Subsection (10) provides that a person may stop any activity specified in the TSN despite any provision in any agreement relating to the trees or the land to which the notice relates. Subsection (11) provides the Scottish Ministers with the power to enter land to which the TSN relates in order to monitor compliance and subsection (12) ensures that felling permissions or felling or restocking direction cannot be given while a TSN is in place.

71.Section 46 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without reasonable excuse, to comply with a TSN.

72.Under section 47, a person who suffers loss as a result of a TSN served where felling was, in fact, authorised is entitled to compensation in accordance with provisions made in regulations by the Scottish Ministers. Section 47(3) provides that regulations may include provision about the procedure for applying, information to be provided in applications, the way in which the amount of compensation is to be determined, the way in which any disputes about compensation are to be determined, and appeals about decisions relating to compensation. Section 76(1)(g) provides that regulations under section 47(3) are subject to negative procedure.

Requests for information

73.Section 48 provides powers for the Scottish Ministers to request information about compliance with felling permission conditions, felling and restocking directions (including any associated conditions), registered notices to comply, remedial notices (including any associated conditions) or registered remedial notices for the purpose of monitoring compliance with those. The persons from whom the Scottish Ministers may request the information are set out in subsection (3).

74.Section 49 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of knowingly or recklessly providing false or misleading information in response to a request for information under section 48.

Site visits with the consent of the owner or occupier

75.Section 50(1) enables the Scottish Ministers to enter land mentioned in subsection (2) to monitor compliance with felling permission conditions, a felling or restocking direction (including any associated conditions), a registered notice to comply, remedial notice (including any associated conditions) or a registered remedial notice. The power is only exercisable with the consent of an owner or occupier of the land mentioned in subsection (2). If consent is given, the Scottish Ministers may exercise the powers in section 62.

Powers of entry

76.Sections 51 to 53 provide the Scottish Ministers with powers of entry to land for the purposes of—

(a)

determining whether unauthorised felling has taken place or is taking place;

(b)

determining whether they need to give a felling or restocking direction; or

(c)

determining whether a person has failed or is failing to comply with a condition on a felling permission, a felling or restocking direction (including any associated conditions), a registered notice to comply, a remedial notice or a registered remedial notice.

Remedial notices

77.Section 54 makes provision about remedial notices, as defined at subsection (2). Subsection (1) enables the Scottish Ministers to 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 or restocking direction (including any associated conditions) or a registered notice to comply.

78.Section 54(3) requires that the Scottish Ministers give a copy of a remedial notice to the owner of the applicable land. Subsection (4) provides that a person may take any steps or stop any activity specified in the remedial notice despite any provision in any agreement relating to the trees or the land to which the notice relates or any associated conditions of the felling permission, felling or restocking direction or, as the case may be, registered notice to comply, which would otherwise prevent that person from doing so. Subsection (5) provides that the Scottish Ministers may vary or revoke a remedial notice (including any associated conditions).

79.Subsection (6) enables the Scottish Ministers, by regulations, to make further provision about remedial notices. Regulations may include provision about the imposition of conditions on a remedial notice, which may include steps that must be taken after the notice is complied with (subsection 7). Section 76(1)(h) provides that regulations under section 54(6) are subject to negative procedure.

80.Section 55 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without reasonable excuse, to comply with a remedial notice (including any associated conditions). Section 56 enables the Scottish Ministers to apply to register remedial notices, specifying the matters set out in subsections (a) and (b). Section 57 creates an offence, punishable upon summary conviction by a fine of up to level 5 on the standard scale, of failure, without reasonable excuse, to comply with a registered remedial notice.

Giving documents to owner or occupier

81.Section 58 makes provision for how notices or other documents are to be given to an owner or occupier of land for the purposes of Part 4 of the Act where the person’s name or address cannot be ascertained after reasonable enquiry.

Step-in power

82.Section 59 provides powers for the Scottish Ministers to enter land to which a remedial notice (including any associated conditions) or registered remedial notice relates and to take the steps, or stop the activity, set out in the notice. The step-in power may be exercised in circumstances where a person has failed to comply with a remedial notice (including any associated conditions) or registered remedial notice within the period specified in it for compliance.

Powers of entry and step-in power: application to court

83.Section 60 provides that, in connection with the exercise of powers under sections 45, 51, 52, 53 and 59 the Scottish Ministers may apply to the sheriff, a summary sheriff or a justice of the peace for a warrant to enter the land concerned and, if necessary, to use reasonable force in doing so.

84.Subsection (3) provides that a warrant may only be granted if the sheriff, summary sheriff or justice of the peace is satisfied, by evidence on oath, that the conditions specified in that subsection are met. Subsection (4) provides that a warrant may not authorise entry to Crown land, entry to a dwelling or the use of force against an individual. Subsection (5) makes provision about expiry of warrants.

Powers of entry and step-in power: offences

85.Section 61 creates two offences, each punishable upon summary conviction by a fine of up to level 5 on the standard scale. The offences are of intentionally obstructing the Scottish Ministers in exercising their powers under sections 45, 51, 52 or 53 (powers of entry) or section 59 (step-in power).

Powers of entry and step-in power: further provision

86.Section 62 makes further provision for the purpose of the exercise by the Scottish Ministers of the powers in sections 45, 50, 51, 52, 53 and 59. As set out in subsection (2) of that section, this includes powers for the Scottish Ministers to take onto the land other persons, materials and equipment as may be reasonably be required; to take samples; to mark things for identification purposes; to require access to, inspect or take copies of information (including information kept in a computer) and to gather evidence. However, these powers may be exercised only at a reasonable time and do not authorise entry to a dwelling (subsections (3) and (4)). Moreover, a person exercising the power must on request produce written evidence of that person’s entitlement to do so (subsection (5)). If the Scottish Ministers cause damage in exercising the powers listed in subsection (1) they must take reasonable steps to remedy the damage or, if it is not possible to do so, must pay compensation (subsection (6)). If the Scottish Ministers enter unoccupied land in exercising the powers listed in subsection (1) they must leave the land as effectively secured against unauthorised entry as they found it and, if they cause loss or damage by failing to comply with that requirement, they must pay compensation (subsections (7) and (8)).

87.Subsection (9) provides that references to the Scottish Ministers in the sections listed from (a) to (g) include persons authorised (in writing) by the Scottish Ministers. This enables the Scottish Ministers to authorise persons to perform the specified functions on their behalf.

Step-in power: recovery of expenses

88.Section 63 makes provision enabling the Scottish Ministers to recover from the person who has failed to comply with a remedial notice (including any associated conditions) or registered remedial notice expenses in connection with the exercise of the Scottish Ministers’ section 59 step-in power. The expenses which may be recovered are set out in subsection (2), and include administrative expenses and interest.

89.Section 64 provides powers for the Scottish Ministers to apply to register a notice of liability for expenses specifying the matters set out in that section. This is for the purposes of enabling them to recover the expenses including (in accordance with section 65) from any new owner of the land to which the notice relates unless the liability was discharged prior to the acquisition of the land by the new owner (see section 66).

90.Section 65 makes provision to enable the recovery of expenses from a new owner of land, who will become severally liable for those expenses along with the former owner of the land, where a notice of liability for expenses is registered in relation to the land at least 14 days before the date on which the new owner acquired a right to the land (subsections (1) and (2)). However, subsection (3) provides that the former owner of the land does not cease to be liable for expenses and interest under section 63 by virtue only of ceasing to be the owner of the land. Moreover, subsections (4) and (5) provide the new owner with a right to recover from the previous owner any amount paid by the new owner in satisfaction of the liability for the expenses and interest due under section 63, including in the case where the new owner ceases to own the land.

91.Section 66 introduces a requirement for the Scottish Ministers to apply to register a notice of discharge of liability of expenses where liability for expenses and interest to which a registered notice of liability for expenses has been discharged. The Scottish Ministers must specify the matters in subsection (2) in the notice.

Time limit for prosecution

92.Section 67 makes provision about the time limit for prosecution of offences under sections 23, 26, 28, 35, 37, 39, 46, 49, 55 or 57. It states that proceedings must be commenced within three years of the commission of the offence (or in the case of a continuous contravention, after the last date on which the offence was committed) and within six months of the date on which evidence that the prosecutor believes sufficient to justify proceedings comes to the prosecutor’s knowledge. It defines the date on which proceeding shall be deemed to be commenced by reference to the Criminal Procedure (Scotland) Act 1995, section 136(3).

Section 68 - Appeals

93.Section 68(1) creates a right of appeal against certain decisions by the Scottish Ministers under Part 4 as specified under that subsection. Subsection (2) provides that the Scottish Ministers, by regulations, may make further provision about appeals under subsection (1). The matters which may in particular be provided for in regulations are set out in subsection (3). Section 76(1)(i) provides that regulations under section 68(2) are subject to the negative procedure and may modify any enactment (including the Forestry and Land Management (Scotland) Act 2018) (subsection (4)).

Part 5 - General powers

94.Sections 69 to 72 provide general powers to support the Scottish Ministers in connection with carrying out their functions under the Act. Section 69 enables the Scottish Ministers to conduct research and inquiries, collect data and publish statistics or other information, provide education and training and encourage or assist other person to do these things. Section 70 enables the Scottish Ministers to form companies in connection with carrying out their functions under the Act. Section 71 enables the Scottish Ministers to provide financial assistance including grants, loans, guarantees and indemnities and attach conditions in respect of any financial assistance provided. Section 72 provides that the Scottish Ministers may impose charges as they consider appropriate. This will enable the existing charging arrangements in place for activities on the national forest estate to be carried forward when management transfers to the Scottish Ministers. Section 6(f) provides that when exercising those general powers for the purpose of or in connection with the carrying out of other functions as specified in section 6, the Scottish Ministers must have regard to the forestry strategy (as prepared under section 3).

95.Section 73 requires the Scottish Ministers to appoint an officer to be known as chief forester and to prescribe, in regulations, qualifications to be held by the person appointed.

96.Section 74 requires the Scottish Ministers to establish a single agency or two agencies when making administrative arrangements to carry out the forestry and land management functions under the Act (defined at subsection (2)).

97.Section 75 introduces a reporting requirement on the operation of the administrative arrangements made for carrying out relevant functions under the Act. Subsection (1) requires the Scottish Ministers, as soon as practicable after the end of the 5 year period, to lay before the Scottish Parliament a report on the operation of the administrative arrangements. Subsection (2) defines “relevant functions” and the “5 year period”. Subsections (3) and (4) make provision about matters that must be included in the report.

Part 6 - General and final provisions

98.Section 76 makes provision for the exercise and scope of regulation-making powers under the Act including the applicable procedures. Section 77 allows the Scottish Ministers to make ancillary provision by regulations to give full effect to the Act or any provision made under it (including a power to modify any enactment). Section 78 makes provision about interpretation. Section 79 introduces schedules 1 and 2 (which, respectively, modify and repeal the enactments to the extent specified in those schedules). (See paragraphs 33 and 51 for a further explanation of the effect of the amendments made to the enactments mentioned in schedule 1.) Section 80 makes provision to save existing forestry dedication agreements under the Forestry Act 1967 (see paragraph 35 for a further explanation as regards the scope of those agreements). Section 81 provides that the Forestry Commissioners’ functions are no longer exercisable in or as regards Scotland and, in consequence, schedule 2 repeals enactments so far as relating to the functions of the Forestry Commissioners in relation to Scotland.

99.Section 83 makes provision about Crown application and exempts the Crown (but not those in the service of the Crown) from criminal liability in relation to the Act. Section 84 makes provision about access to Crown land and has the effect that powers of entry are exercisable in relation to Crown land only with the consent of the appropriate authority. Subsection (2) lists types of Crown land and the appropriate authority in relation to each type of that land.

100.Section 85 deals with commencement of the provisions in the Act. Subsection (4) provides that Scottish Ministers must lay before the Scottish Parliament, no later than 1 April 2019, a report setting out the administrative arrangements they intend to make in carrying out the functions under the Act. Subsection (5) specifies matters that must be included in the report required by subsection (4), and subsection (6) introduces consultation and notification requirements to be fulfilled by the Scottish Ministers before making any significant changes to the arrangements set out in the report.

101.Section 86 provides that the short title of the Act is the Forestry and Land Management (Scotland) Act 2018.

Parliamentary History

102.The following is a list of the proceedings in the Scottish Parliament on the Bill for the Act and significant documents connected to the Bill published by the Parliament during the Bill’s parliamentary passage.

Proceedings and ReportsReferences
Introduction
Bill as introduced – 10 May 2018SP Bill 11 - Session 5 (2017)
SPICe briefingSb 17/38
Stage 1
Rural Economy and Connectivity Committee
24 May 2017In private
7 June 2017Official Report, Col 1 - 25
21 June 2017Official Report, Col 1 - 44
6 September 2017Official Report
13 September 2017Official Report, Col 22 - 50
27 September 2017In private
Stage 1 report – 6 October 2017Stage 1 Report
Environment, Climate Change and Land Reform Committee
19 September 2017In private
Delegated Powers and Law Reform Committee
30 May 2017Official Report, Col 5
20 June 2017In private
27 June 2017In private
Stage 1 report – 27 June 2017Stage 1 Report
21 November 2017Official Report, Col 4
Consideration by the Parliament
Stage 1 debate – 7 November 2017Official Report, Col 16 - 67
Stage 2
Rural Economy and Connectivity Committee
6 December 2017Official Report
13 December 2017Official Report
Bill as amended at Stage 2SP Bill 11A - Session 5 (2017)
Delegated Powers and Law Reform Committee
23 January 2018Official Report, Col 3
Stage 3
Consideration by the Parliament
Stage 3 proceedings – 20 March 2018Official Report, Col 13 - 135
Bill as passedSP Bill 11B - Session 5 (2018)
Royal Assent
1 May 2018http://www.legislation.gov.uk/asp/2018/8/contents

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