The Forestry and Land Management (Scotland) Act 2018 (Commencement, Transitional and Saving Provisions) Regulations 2019

Explanatory Note

(This note is not part of the Regulations)

These Regulations appoint 1 April 2019 as the day on which all of the provisions contained in the Forestry and Land Management (Scotland) Act 2018 (“the 2018 Act”), other than sections 76 to 78 and 82 to 86 of the 2018 Act (which came into force on 2 May 2018 by virtue of provision made in section 85(1) of the 2018 Act) will come into force. The regulations also make certain transitional and saving arrangements in consequence of those provisions coming into force.

Background S

The 2018 Act confers a range of functions on the Scottish Ministers in relation to forestry and the management of forested land and other land in Scotland.

Section 81 of the 2018 Act also provides that the functions of the Forestry Commissioners (including those related to the control of the felling of trees in Part II of the 1967 Act) which were exercisable immediately before the appointed date will no longer be exercisable in or as regards Scotland after that date.

Section 79 and schedule 2 of the 2018 Act provide for the repeal of the Forestry Act 1967 (“the 1967 Act”) and various other enactments on the appointed day.

The regulations S

Regulation 3 makes provision for most applications for a felling licence (under Part II of the 1967 Act) which were made but not determined before the appointed day to be treated, on and after the appointed day, as if they were applications for a felling permission under the 2018 Act. This does not apply to applications of the type referred to in regulation 3(2) (“the excepted cases”).

Regulation 4 provides that the relevant provisions within the 1967 Act will continue to have effect (with necessary modifications) for the purposes of determining the excepted cases.

Regulation 5 provides that (subject to certain limited exceptions in regulation 5(4)) a felling licence granted in an excepted case will be treated on and after the day it is granted as if it were a felling permission granted under section 27 of the 2018 Act.

Where a felling licence is refused, or is granted subject to conditions in an excepted case, regulation 6 preserves (subject to necessary modifications) the provisions within the 1967 Act which allow for such decisions to be reviewed.

Regulation 7 preserves (subject to necessary modifications) the provisions in the 1967 Act which deal with compensation for refusal to grant a felling licence for the purposes of any refusal to grant such a licence in the excepted cases.

Regulation 8 provides that where the Forestry Commissioners have referred an application for a licence to fell trees to which a tree preservation order relates to another party to determine under provisions contained in section 15 of the 1967 Act before the appointed day but the referral has not yet been determined, the relevant provisions of the 1967 Act are continued in effect for the purposes of allowing that determination to be made.

Regulation 9 provides that where an application for a licence to fell trees in accordance with a plan of works approved by the Forestry Commissioners was refused before the appointed day, the provisions in the 1967 Act which enable the applicant to ask the Forestry Commissioners to acquire the trees will continue to apply (subject to necessary modifications).

Regulation 10 provides that (subject to certain limited exceptions in regulation 10(3)) felling licences granted before the appointed day are to be treated on and after that day as if they were a felling permission granted under the 2018 Act and that any conditions attached to a felling licence are to be treated as if they were a condition imposed on a felling permission.

Regulation 11 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow an applicant who is given a felling licence subject to conditions before the appointed day to seek a review of that decision where the applicant has sent the notice requesting a review to the Commissioners under before the appointed day or where the period in which such a notice could be sent will not expire until after the appointed day.

Regulation 12 provides that (subject to certain limited exceptions in regulation 12(3)) where a felling licence is granted following a review (under the provisions of the 1967 act which are continued in effect for that purpose by regulations 6 and 11), it is to be treated, on and after the day it is granted, as a felling permission granted under the 2018 Act.

Regulation 13 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow an applicant who has been refused a felling licence to claim compensation where the applicant has sent a claim for compensation before the appointed day or where the period in which such a claim could be sent will not expire until after the appointed day.

Regulation 14 provides that (subject to certain limited exceptions in regulation 14(3)) any Land Management Plan or Forest Design Plan approved before the appointed day will be treated, on and after that date, as a felling permission granted under the 2018 Act.

Regulation 15 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow for enforcement of felling licence conditions, where such enforcement action has been commenced but not completed before the appointed day. Regulation 16 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow for appeals against enforcement of felling licence conditions.

Regulation 17 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow for enforcement of such a restocking notice and for an appeal against such enforcement.

Regulation 18 preserves (subject to necessary modifications) the provisions in the 1967 Act which allow for appeals against a restocking notice and a notice of compliance issued in relation to a restocking notice which are pending at the appointed day.

Regulations 19 and 20 preserve the provisions in the 1967 Act which enable the Scottish Ministers to acquire certain land by agreement or by compulsory purchase for the purposes of any such acquisition or compulsory purchase which was commenced but not completed before the appointed day and claim for compensation which was not made but not determined before the appointed day.

Regulation 21 preserves the provisions in the 1969 Act and the Forestry Act 1979 which enabled the making of grants and loans by Forestry Commissioners for the purposes of any grants or loans which were made before the appointed day and will continue to be paid after that day.

Regulation 22 preserves a number of provisions in the 1967 Act which were themselves preserved by the 1967 Act in consequence of the repeal of various enactments by section 50 and schedule 7 of the 1967 Act.