Part III Hill Land
Special measures for certain areas
52 Control of afforestation.
F1(1)
Subject to this section, no person shall plant land in the area of a Rural Development Board with trees except under the authority of a licence granted by the Board.
(2)
Subsection (1) above shall not apply—
(a)
to planting by F2the appropriate forestry authority,
(b)
so long as the covenant, agreement or scheme in question continues in force, but without prejudice to the enforceability of any condition contained in a licence granted before it was entered into or, as the case may be, took effect, to land which is subject to a forestry dedication covenant or agreement as defined in section 5 of the M1Forestry Act 1967, or the subject of an approved woodlands scheme made under the powers contained in that Act or any enactment repealed by that Act,
(c)
to land which is, or at some time in the period of ten years before the planting has been, woodland,
(d)
to the planting of land of an area not exceeding F3four hectares, but not so as to permit more than F3four hectares of land in the ownership of any one person or, where two or more agricultural units are in the same ownership, more than F3four hectares in each unit, to be planted in any period of twelve months,
(e)
to the planting of fruit trees or to land forming part of an orchard,
(f)
to land forming part of a public open space, or to land which it is not reasonably practicable to put to any beneficial use in its existing state,
(g)
F4to planting required as a condition imposed on the granting of planning permission under F5the Town and Country Planning (Scotland) Act 1997 or F6the Town and Country Planning Act 1990 or as a condition attached to a felling licence granted, or having effect as if granted, under the Forestry Act 1967,
F4to planting required as a condition—
(i)
imposed on the granting of planning permission under the Town and Country Planning (Scotland) Act 1997 or the Town and Country Planning Act 1990,
(ii)
attached to a felling licence granted, or having effect as if granted, under the Forestry Act 1967, or
(iii)
imposed on a felling permission, felling direction, restocking direction, registered notice to comply, remedial notice or registered remedial notice under the Forestry and Land Management (Scotland) Act 2018,
(h)
if the order establishing the Board so provides, to planting carried out during such period not exceeding three months from the date on which it is established as may be specified in the order.
(3)
An application for a licence under this section shall be in such form as the Board direct, and on the application the Board may refuse or grant it either with or without conditions; and the Board shall exercise their powers under this section as a means of meeting the problems and needs described in section 45 of this Act in their area.
(4)
The Board may in particular grant a licence subject to any condition—
(a)
governing the kinds of trees planted,
(b)
where the licence authorises the planting of a short-term crop, requiring the use of the land for growing trees to be discontinued by the end of a specified period, and requiring before the end of that period the carrying out of such works for the clearing of the land as will make it suitable for agricultural purposes,
(c)
limiting the period within which the planting authorised by the licence is to be carried out,
(d)
requiring the planting, and any fencing in connection therewith, to be carried out in such a way that access to other land will not be blocked.
(5)
A licence under this section shall name the person to whom it is granted, and shall authorise planting by that person only unless it is endorsed by the Board in favour of another; and—
(a)
the Board shall not endorse a licence in favour of any person except with the consent in writing of the person for the time being entitled to its benefit,
(b)
subject to the foregoing paragraph, it shall be the duty of the Board to endorse a licence on the application in writing of a person owning for the time being the same estate or interest in the land to which the licence relates as that owned by the grantee of the licence at the time when it was granted or (by virtue of subsection (12) below) is deemed to have been granted,
(c)
subject to that paragraph, in any other case the Board may grant or refuse an application for endorsement as they think fit.
(6)
The Board shall, within two months of receipt of an application duly made for a licence under this section, serve on the applicant, and on all persons other than the applicant who have an estate or interest in the land to which the application relates, other than a minor tenancy, notice of the manner in which the application has been dealt with; and, except where their decision is to grant a licence without any conditions other than a condition requiring the planting which is authorised to be carried out within a period of five years from the grant of the licence, the notice shall give the reasons for their decision.
(7)
Within two months of receipt of a notice under subsection (6) of this section, the applicant and any person other than the applicant who has an estate or interest, other than a minor tenancy, in the land to which the notice relates, may appeal to the appropriate Minister against the decision and—
(a)
before determining the appeal the appropriate Minister shall, if either the appellant or the Board so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by the appropriate Minister for the purpose,
(b)
the appropriate Minister may allow or dismiss the appeal, or may reverse or vary any part of the decision of the Board on the application, whether the appeal relates to that part or not, and
(c)
the appropriate Minister shall serve notice of his decision on the appeal on the appellant and on every person other than the appellant who has an estate or interest, other than a minor tenancy, in the land to which the appeal relates.
(8)
A person who contravenes subsection (1) of this section, or any condition subject to which a licence is granted under this section, shall be liable on summary conviction to a fine not exceeding F7level 3 on the standard scale.
(9)
Where a person is convicted of an offence under the last foregoing subsection the court may, in addition to or instead of inflicting a fine, order him, within the time specified in the order, to take such steps as may be so specified for remedying the matters in respect of which the contravention occurred, and may on application enlarge the time so specified; and if the order is not complied with that person shall be liable on summary conviction to a fine not exceeding ten pounds for each day on which the non-compliance continues.
(10)
Proceedings in respect of an offence under subsection (8) of this section may be instituted within six months of the first discovery of the offence by the person taking the proceedings, so, however, that no proceedings shall be instituted in respect of such an offence more than two years after the date of the offence.
(11)
A Rural Development Board in granting consent under section 49 of this Act to the transfer of land which in their opinion is land in respect of which an offence has been committed under subsection (8) of this section may impose a condition that the consent shall not take effect until such steps as may be specified by the Board in granting their consent have been taken to remedy the matters in respect of which the alleged contravention occurred, and the conditions so imposed may be varied by the court in exercising its jurisdiction under subsection (9) of this section.
(12)
An application for a licence under this section must be sent to the Board by registered post or recorded delivery service, or delivered to the secretary or chief officer of the Board, and if within the period specified in the next following subsection the Board do not notify the applicant of their decision on the application, this section shall have effect as if at the expiration of that period the Board had granted the licence applied for without any conditions other than a condition requiring the authorised planting to be carried out within five years from that date; and it shall be the duty of the Board to grant a licence to the applicant in those terms.
(13)
An applicant who has not received a notice as required by subsection (6) of this section may by notice (to be served on the Board in the way required for service of his application) require the Board to make good their default and the period at the end of which subsection (12) above shall operate shall be the period of fourteen days from the service of that notice.
(14)
For the purpose of this section the period of twelve months mentioned in subsection (2)(d) of this section shall, in relation to any land, include a period beginning before the land is within the Board’s area.
(15)
In this section, unless the context otherwise requires—
“minor tenancy” means a tenancy of less than twelve months;
“public open space” means land laid out as a public garden or used (otherwise than in pursuance of section 193 of the M3Law of Property Act 1925 or of Part V of the National Parks and Access to the M4Countryside Act 1949 F8or Part I of the Countryside and Rights of Way Act 2000)) for the purpose of public recreation, or land being a disused burial ground.
F9(16)
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