Muirburn licences
Section 13—Application for muirburn licence
79.Section 13 sets out the requirements for applying for a muirburn licence. An application that does not fulfil the requirements would not be valid and therefore could not provide a basis for granting a licence under section 14.
80.Amongst other things (such as evidence of having completed an approved training course or the payment of a fee), an application has to specify the purpose for which the applicant wishes to make muirburn, which must be one of the purposes listed in subsection (2). Subsection (2) sets out different lists of permissible purposes depending on whether or not the land in question is peatland (as defined in section 22). For example, preventing, or reducing the risk, of wildfires, which could include the managing of fuel loads that would otherwise cause wildfires.
81.Subsection (5) gives the Scottish Ministers a power to modify by regulations the lists of permissible purposes for which muirburn can be made. Regulations under that power would be subject to the affirmative procedure (which is defined in section 29 of the ILRA 2010). Before making regulations to modify the list of purposes the Scottish Ministers must consult Scottish Natural Heritage and such other persons as they consider likely to be interested in or affected by the licensing of muirburn.
82.Subsection (8) makes it a crime to knowingly or recklessly make a false statement about anything material in order to obtain a muirburn licence. The maximum penalty for anyone committing the offence is the same as for anyone committing the offence under section 9 (see paragraph 75 above).
Section 14—Grant of muirburn licence
83.Section 14 empowers the Scottish Ministers, on receiving an application that meets the requirements in section 13, to grant a muirburn licence. Subsection (1) sets out the considerations relevant to a decision on whether to grant a licence. Subsection (2) places restrictions on the granting of muirburn licences depending on whether it is within or outwith the muirburn season.
84.While section 14 says it is for the Scottish Ministers to grant licences, it is a function which they can delegate to Scottish Natural Heritage under section 21.
Section 15—Muirburn licences: content and conditions
85.Section 15(1) sets out the basic information that every muirburn licence must contain.
86.Subsection (2) states the conditions attached to all muirburn licences, which are:
the person to whom the licence is issued must have regard to the Muirburn Code (see section 18),
a person intending to make muirburn must also have regard to the Muirburn Code, complete a training course approved under section 17 before making muirburn and must also comply with section 19 (which relates to notice requirements).
87.Subsection (3) allows the Scottish Ministers to attach further conditions to a muirburn licence. Subsection (4) provides an illustrative list of what further conditions might be attached. The list includes conditions about complying with certain provisions of the Muirburn Code, which would create a stronger requirement to abide by those provisions than the general condition attached to all licences to have regard to the Code.
88.Failure to comply with the conditions of a muirburn licence may be a criminal offence under section 12(1) if it results in muirburn being made otherwise than in accordance with the licence’s terms.
Section 16—Modification, suspension and revocation of muirburn licence
89.Section 13 allows the Scottish Ministers to modify, suspend and revoke muirburn licences. This is a function which they can delegate under section 21. For brevity, in the following explanation of section 16, “the licensing authority” is used to mean the Scottish Ministers or Scottish National Heritage if they have delegated the relevant functions.
90.The licensing authority can modify a muirburn licence at any time. But notice (in accordance with subsection (2) and (3)) has to be given before the modification can take effect, and the notice has to give reasons for the change.
91.The same notice requirements apply to decisions to revoke (i.e. withdraw) or suspend a person’s muirburn licence. In addition, section 16 restricts the circumstances in which the licensing authority can decide to revoke or suspend a licence.
92.Revoking a muirburn licence is only allowed if the licensing authority is satisfied that the licence holder, or another person involved in managing the land that the licence relates to, has committed an offence under Part 2. The licensing authority has only to be satisfied to the civil standard of proof, which is that it is more likely than not that one of those persons committed such an offence, and can therefore be satisfied of that even if the person in question is never found guilty in a criminal court (where the higher evidential standard of proof beyond reasonable doubt applies). Of course if a person were found guilty by a criminal court that would be a sensible basis for the licensing authority to be satisfied that the person committed the offence.
93.Suspending a muirburn licence is an alternative option for the licensing authority in the same circumstances as those in which it could revoke.
94.Section 16(5) states that a muirburn licence is of no effect while suspended. As mentioned in the explanation of section 12, this means that for the duration of the suspension it would be an offence under that section to cause or permit anything to be done for which a muirburn licence is required.
95.Subsection (6) of section 16 requires a court that convicts a person of an offence under Part 2 to notify the licensing authority of that fact. This is so the licensing authority can decide whether to suspend or revoke a muirburn licence in light of the conviction, and can take it into account in considering future licence applications.
Section 17—Approved training courses
96.Section 17 requires the Scottish Ministers (or if they delegate the function, Scottish Natural Heritage) to approve training courses. Before applying for a muirburn licence, a person is required to complete an approved training course and must provide evidence of having done so when applying for a muirburn licence. The section allows the relevant authority to make provision such as determining training requirements, accrediting courses and trainers and the minimum criteria for the successful completion of courses.
