Section 39 - Varying, suspending or revoking tree felling licences
215.Section 39 inserts three new sections (sections 24C, 24D and 24E) into the Forestry Act 1967 to enable NRW, as the appropriate forestry authority for Wales, to vary, amend, suspend or revoke a tree felling licence in certain circumstances (without agreement).
Section 24C
216.NRW can give “the person responsible” a notice under section 24C(3) if it considers that a condition of the licence (other than a condition that requires works to be carried out) has not been complied with, or is not being complied with.
217.A notice given under section 24C(3) is able to suspend the licence (either in full or partially), vary or remove a condition of the licence, or impose a new licence condition. In addition, where the condition that has been, or is being, breached has been imposed for the purpose of conserving or enhancing natural beauty, or for conserving flora, fauna, geological or physiographical features or natural habitats, a notice given under section 24C(3) may revoke the licence.
218.A notice given under section 24C(3) may also specify steps that must be taken (within a period specified in the notice) by the person to whom the notice has been given.
219.If the steps required by a notice given under section 24C(3) are not taken within the time specified in the notice, NRW may take enforcement action in accordance with section 24C(9), (10) and (11). NRW may enter onto the land and take the steps itself (under section 24C(9)), or it may bring proceedings against the person who has failed to take steps (in accordance with section 24C(10) and (11)). It is an offence for a person not to take the steps required by a notice given under section 24C(3) unless they have a reasonable excuse. This offence is summary only and is punishable by a fine.
220.Where a notice given under section 24C(3) suspends a felling licence, the suspension comes to an end when the period set out in the notice expires, unless NRW gives a further notice lifting the suspension on an earlier date.
221.“The person responsible”, for the purposes of section 24C, is defined in section 24C(13).
Section 24D
222.NRW can give a notice under section 24D(2) if a notice has been given under section 24C(3) requiring steps to be taken, but before those steps have been taken, the person to whom the notice was given ceases to have the relevant estate or interest in the land.
223.This situation could arise, for example, if the land that is the subject of a section 24C(3) notice changes hands before steps set out in the notice have been taken.
224.In those circumstances, section 24D provides that NRW, as the appropriate forestry authority, can serve a notice on a person who has the relevant estate or interest in the land, requiring that person to take the steps that were previously set out in the section 24C(3) notice (within a period specified in the notice).
225.Section 24D(5) provides that it is an offence for a person not to take the steps required by a section 24D(2) notice unless they have a reasonable excuse. This offence is summary only and is punishable by a fine. As with section 24C(3) notices, if the steps required by a section 24D(2) notice have not been taken within the specified period, NRW may enter onto the land to take the steps itself (under section 24D(4)).
Section 24E
226.NRW can give “the person responsible” a notice under section 24E(2) if it considers that tree felling in accordance with a licence is causing, or is likely to cause, significant harm to (i) natural beauty, or (ii) flora, fauna, geological or physiographical features, or natural habitats.
227.The circumstances in which a section 24E(2) notice can be given are, therefore, different from the circumstances that give rise to notices being given under sections 24C and 24D: NRW’s power to give a notice under section 24E(2) is not dependent on a licence condition having been breached, and can arise even where a licence holder is not at fault.
228.Under section 24E(2), NRW may give a notice to “the person responsible” to suspend or amend a felling licence or, if NRW considers that suspending or amending the licence would not prevent the harm in question, to revoke the licence.
229.The person responsible, for the purposes of section 24E, is defined in section 24E(6).
230.As with section 24C(3) notices, where a notice given under section 24E(2) suspends a felling licence, the licence may be suspended in full or partially, and the suspension comes to an end when the suspension period set out in the notice expires (unless NRW gives a further notice lifting the suspension on an earlier date).
231.If a notice given under section 24C(3) or 24E(2) makes provision to vary or amend a felling licence, or to suspend or revoke a felling licence, and a person fells trees in contravention of those provisions, that person is likely to be felling trees without the authority of a felling licence.
232.In those circumstances, enforcement action can be taken via section 17 of the Forestry Act 1967 Act. Section 17 provides that it is an offence to fell without the authority of a felling licence, and a person found guilty of the offence will be liable on summary conviction to an unlimited fine (see commentary below on section 42 of the Act, which amends section 17 of the Forestry Act 1967).
