Murray Beith Murray Partner, Andrew Linehan, writes in the summer edition of LandBusiness magazine. Read the full article below, republished by kind permission of LandBusiness magazine:
Commercial forestry has a long relationship with Scotland. The reasons for that relationship have of course changed over time, from initially supporting national security to more modern uses in industry and carbon sequestration. However, one issue that remains a constant in modern times is that of access – both to forestry, and from it, for the all-important phase of timber extraction.
In looking at the access that a commercial plantation may have, or need, there are both legal and local considerations to be had.
Locally, remote communities can often feel threatened by timber traffic, particularly through settlements and on narrower roads. Even if a plantation has roadside access, where extraction is in contemplation it is important to make sure that there are no local restrictions on the use of the public road network on vehicle movements. Many areas will have preferred haulage routes, and in areas with extensive commercial forestry there will often be private shared forestry access infrastructure leading to these routes.
Legally, even where a plantation is adjacent the public highway it is critical to ensure that either the extent of the legal title or servitude rights of access pertaining to it are contiguous with the adopted road or its verge. Even where they do, if there is not a made-up junction onto the public road then local authority consents may still be needed to make one up.
It is not unusual to find older titles whose plans are drawn (literally…) to follow the line of roadside fences and which track away from the adopted extent of the public road or its verge to follow the line of a bellmouth or gated entrance into a plantation. In some circumstances this can lead to a situation where the bellmouth itself is not owned with the plantation. In turn this can lead to ambiguity as to whether or not a plantation has a marketable access if there are no stated servitudes. Given current sale prices, the impact that can have in cash terms can be significant.
Where forestry or estate titles are undergoing voluntary registration in the Land Register this is contiguity with the adopted road or its verge is a key point to look out for. If the access – either via ownership or servitudes – does not extend to the adopted road then prescriptive rights (i.e. those acquired by long use) may need to be claimed for ‘belt and braces’.
Situations can arise where timber is planted on hill ground which had historic rights for access defined by traditional uses such as livestock and stalking. As rights of access acquired by long use tend to only be good for the purposes that they have been used for in the past, it can then become an unpleasant surprise at the time of extraction if the rights of access are not constituted in sufficiently broad terms to be good for such use given that extraction can potentially represent an intensification of use. This can be compounded by the fact that modern machinery is larger than it was historically, and rights to widen roads and gates and to culvert burns, etc., may well be needed. Modern drafting should generally include such rights, but that is not always the case with how things were done in the past.
Murray Beith Murray frequently advise in relation to forestry matters and, in our experience, if the right questions are asked from the outset, then difficulties with access can frequently be managed. As ever, taking the right legal advice in good time will often bear dividends.
Specialist Rural Property Lawyers, Edinburgh
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