The Forestry and Land Management (Scotland) Act 2018 ("the Act") creates a modernising framework for the forestry industry in Scotland. The previous law had been in place since 1967 and one of the Act's objectives was to create a regulatory regime that was modern, flexible and agile. The Act itself is short on detail and it was always intended to be supplemented by detailed guidance and regulations. Those involved in the sector will be keen to ensure that the Government delivers on this objective and creates a framework that facilitates the continued growth of a vibrant industry that contributes almost £1 billion per year to the Scottish economy.

The first significant step towards implementation was the publication on 20th August of a consultation paper on the future of the regulation of felling and restocking. The intention is that the new regulations will take effect on 1st April 2019. The consultation paper has a stated aim to remain as close as possible to the existing regime, departing only for the purposes of making the process simpler or more transparent or reducing the potential for inappropriate deforestation. We suspect this final purpose will be of most interest to forest owners and managers in light of the potential it creates for regulatory interference and involvement beyond that which currently exists.

Certain types of felling operation are exempt from the need for regulatory permission, whether because of size (diameter not exceeding 8cm), location (e.g public open spaces) or volume (no more than 5 cubic metres to be felled per three months). The proposals largely preserve these exemptions, although the volume exemption will no longer apply to certain defined species deemed to have "high environmental value."

The exemption that currently exists for trees that pose a danger or nuisance is proposed to remain only for those that pose a danger. Accordingly trees that in their current state are considered a nuisance but not dangerous will require a permission before being felled, unless such steps could be caught by one of the other exemptions. Examples of "nuisance" in the proposals include trees overhanging driveways or dropping leaves in gutters, and tree roots that are damaging pavements.

Exemptions relating to infrastructure projects are proposed to remain, whilst felling required in connection with complying with a law or implementation of a planning consent will not require a separate permission, the rationale for the latter being that planning policy around woodland removal should offer adequate protection.

The existing law only requires permission to fell growing trees, so trees that have, for whatever reason, stopped growing can be felled without permission. The new proposals create an exemption for dead trees, but recognises that this will not necessarily apply to all trees that are seriously diseased or damaged by wind or fire. This distinction may have significant implications for harvesting procedures following windblow or forest fires and is an aspect of the proposals that merits particular consideration by the industry.

The forestry industry will be interested to see how the new ability to register felling conditions against title to land will be used in practice, in terms of how frequently that will happen and the type of condition that will be imposed. Further guidance on that is promised. It is hoped that any additional administrative burden will be minimal. There is certainly scope for greater transparency and a more streamlined process when acquiring a forest or land affected by a live felling licence.

The consultation also contains proposals relating to felling directions and the proposals are far more detailed than the rules that that exist at present, in terms of what conditions can be imposed and the factors to be taken into account. Again, further guidance is promised.

The deadline for responses to the consultation is 14th October. If you have any concerns or questions on how this may affect your own property or business then please contact Graeme Leith or your usual Brodies contact.