Philip Buchan, an Associate with Murray Beith Murray, provides an update on The Forestry and Land Management (Scotland) Act 2018, in this month’s edition of Scottish Land & Estates, LandBusiness magazine.
Read the full article below:
‘Update: The Forestry and Land Management (Scotland) Act 2018
The Forestry and Land Management (Scotland) Act 2018 (the “Act”) received Royal Assent on 1 May 2018 and the legislation is expected to be brought into force in April next year. The Act will repeal the Forestry Act 1967 and result in the devolution of forestry regulation to the Scottish Government. After a number of revisions at committee stage, the Act is a pared back version of what was originally intended. The provisions can be summarised as follows:-
National Forestry Strategy
The current Scottish Forestry Strategy was produced in 2006. It has been updated from time to time but a refresh is desired to reflect Scottish economic and environmental aspirations. The Act requires the Scottish Ministers to prepare a forestry strategy, setting out a vision for forestry in Scotland.
The forestry strategy must include the Scottish Ministers’ objectives, priorities and policies with respect to such matters as the creation of woodland, the economic development of forestry, planting targets, the conservation and enhancement of the environment, the realisation of social benefits, the acquisition and sale of land by the Scottish Ministers and the production and supply of timber and other forest products.
In preparing the forestry strategy, the Scottish Ministers must have regard to the land use strategy (prepared under section 57 of the Climate Change (Scotland) Act 2009), the land rights and responsibilities statement (section 1 of the Land Reform (Scotland) Act 2016), Article 2 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change) and the code of practice on deer management (section 5A of the Deer (Scotland) Act 1996).
The Act also places a duty on the Scottish Ministers to promote sustainable forest management with the plans for doing so to be set out in the forestry strategy and they must publish a map of the land managed by them.
It was initially thought that the legislation would end the statutory authority of the Forestry Commission in Scotland and replace it with a division of the Scottish Government.
However, concerns were expressed at Bill stage that by its nature, forestry and land management requires a long-term approach, whereas government terms are relatively short and subject to political pressure, and a trusted brand could be lost and replaced by a policy driven department.
Instead, the Act provides for the establishment of “a single agency or two agencies”, which will operate at arms-length from the Scottish Government. In essence, the Act devolves forestry while largely maintaining the existing structure, preserving the knowledge and expertise (but possibly not the name) of the Forestry Commission.
The Forestry Act 1967 contains compulsory purchase powers and subject to certain exceptions, the Act gives the Scottish Ministers powers to compulsory purchase land for the purpose of exercising their duty to promote sustainable forestry management, but not to further sustainable development.
Under the Forestry Act 1967, a felling licence is required to fell growing trees unless their diameter does not exceed specific measurements set out in the legislation. The Act has not retained these exceptions but it does leave room for exceptions to be created by secondary legislation. The Act also requires felling and restocking to be registered with the Registers of Scotland.
Finally, the Act creates the role of Chief Forester. This person will be appointed by the Scottish Ministers to assist and advise them in the carrying out of their functions under the Act, and must possess relevant qualifications which are yet to be prescribed by the Scottish Ministers.
Planting levels remain significantly below the levels seen in the 1980’s and the potential effects of Brexit and global conflicts are uncertain. It remains to be seen if a new forestry strategy will result in greater investment in infrastructure by the Scottish Government and an increase in appropriate land being consented for commercial forestry planting.’
Specialist Rural Property Lawyers, Edinburgh
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