Part 4 - Forestry
Section 36 – Overview of Part
206.This section explains how this Part of the Act amends Part 2 of the Forestry Act 1967 (c. 10) in relation to Wales.
Section 37 - Conditions of tree felling licences
207.Section 37 amends section 10 of the Forestry Act 1967 to enable the Natural Resources Body for Wales (“
208.Section 10 of the Forestry Act 1967 currently enables NRW to impose conditions for certain purposes when granting tree felling licences. This amendment adds a further purpose for which NRW will be able to attach conditions to new tree felling licences. It will allow NRW to include conditions to felling licences to prevent felling that would contradict other environmental legislation. For example, to include conditions requiring licence holders not to fell trees in certain areas in order to retain habitat, or to fell trees only at certain times of year, or undertake capital works to mitigate the impact of felling on the environment if it appears to NRW that it would be expedient to do so in order to conserve certain flora or fauna or avoid environmental harm.
Section 38 - Amendment of tree felling licences by agreement
209.Section 38(1) inserts new subsections (3A) and (3B) into section 10 of the Forestry Act 1967 to enable NRW (as the appropriate forestry authority for Wales under that Act) and the “person responsible” to agree (at any time) to amend a felling licence.
210.New subsection (3B) makes it clear that the “person responsible” is the applicant for the licence if the applicant still has an estate or interest in the land that would enable him/her, with or without consent of any other person, to fell the trees that are the subject of the licence. If the applicant no longer has such an interest, the “person responsible” is a person who has such an estate or interest.
211.The ability to amend a felling licence by mutual agreement is intended to help address or reflect changes in circumstances, for example where boundaries have changed or a need to replant with a different tree species or other sensitivities which may come to light after the licence has been granted, or alternatively where a breach of a condition of the felling licence has occurred.
212.Section 38(2) inserts a new section 10A after section 10 of the Forestry Act 1967. New section 10A only applies if the trees that are subject to the felling licence are subject to a tree preservation order (a “TPO”), and NRW and the person responsible are proposing to amend a felling licence under section 10(3A).
213.In those circumstances, NRW must give the authority by whom the TPO was made written notice of the proposed amendment, unless the exception set out in section 10A(1)(b) applies. The effect of section 10A(1)(b) is that, if NRW considers that the amendment to the licence is necessary to respond to an imminent and serious risk of harm to natural beauty, or to flora, fauna, geological or physiographical features, or natural habitats, the requirements set out in section 10A do not apply. This enables amendments that are necessary to prevent an imminent and serious risk of environmental harm to be made without delay.
214.Section 10A(3) gives the TPO authority, once it has been informed about a proposed amendment, an opportunity to object to the amendment within a prescribed period (to be set out in regulations). If the TPO authority do not withdraw their objection, NRW must refer the matter to the Welsh Ministers. The Welsh Ministers must then grant consent to the amendment or refuse to grant consent, and must consult those set out in 10A(6) before making their decision.
Section 39 - Varying, suspending or revoking tree felling licences
215.Section 39 inserts three new sections (sections 24C, 24D and 24E) into the Forestry Act 1967 to enable NRW, as the appropriate forestry authority for Wales, to vary, amend, suspend or revoke a tree felling licence in certain circumstances (without agreement).
Section 24C
216.NRW can give “the person responsible” a notice under section 24C(3) if it considers that a condition of the licence (other than a condition that requires works to be carried out) has not been complied with, or is not being complied with.
217.A notice given under section 24C(3) is able to suspend the licence (either in full or partially), vary or remove a condition of the licence, or impose a new licence condition. In addition, where the condition that has been, or is being, breached has been imposed for the purpose of conserving or enhancing natural beauty, or for conserving flora, fauna, geological or physiographical features or natural habitats, a notice given under section 24C(3) may revoke the licence.
218.A notice given under section 24C(3) may also specify steps that must be taken (within a period specified in the notice) by the person to whom the notice has been given.
219.If the steps required by a notice given under section 24C(3) are not taken within the time specified in the notice, NRW may take enforcement action in accordance with section 24C(9), (10) and (11). NRW may enter onto the land and take the steps itself (under section 24C(9)), or it may bring proceedings against the person who has failed to take steps (in accordance with section 24C(10) and (11)). It is an offence for a person not to take the steps required by a notice given under section 24C(3) unless they have a reasonable excuse. This offence is summary only and is punishable by a fine.
220.Where a notice given under section 24C(3) suspends a felling licence, the suspension comes to an end when the period set out in the notice expires, unless NRW gives a further notice lifting the suspension on an earlier date.
221.“The person responsible”, for the purposes of section 24C, is defined in section 24C(13).
Section 24D
222.NRW can give a notice under section 24D(2) if a notice has been given under section 24C(3) requiring steps to be taken, but before those steps have been taken, the person to whom the notice was given ceases to have the relevant estate or interest in the land.
223.This situation could arise, for example, if the land that is the subject of a section 24C(3) notice changes hands before steps set out in the notice have been taken.
224.In those circumstances, section 24D provides that NRW, as the appropriate forestry authority, can serve a notice on a person who has the relevant estate or interest in the land, requiring that person to take the steps that were previously set out in the section 24C(3) notice (within a period specified in the notice).
225.Section 24D(5) provides that it is an offence for a person not to take the steps required by a section 24D(2) notice unless they have a reasonable excuse. This offence is summary only and is punishable by a fine. As with section 24C(3) notices, if the steps required by a section 24D(2) notice have not been taken within the specified period, NRW may enter onto the land to take the steps itself (under section 24D(4)).
Section 24E
226.NRW can give “the person responsible” a notice under section 24E(2) if it considers that tree felling in accordance with a licence is causing, or is likely to cause, significant harm to (i) natural beauty, or (ii) flora, fauna, geological or physiographical features, or natural habitats.
227.The circumstances in which a section 24E(2) notice can be given are, therefore, different from the circumstances that give rise to notices being given under sections 24C and 24D: NRW’s power to give a notice under section 24E(2) is not dependent on a licence condition having been breached, and can arise even where a licence holder is not at fault.
228.Under section 24E(2), NRW may give a notice to “the person responsible” to suspend or amend a felling licence or, if NRW considers that suspending or amending the licence would not prevent the harm in question, to revoke the licence.
229.The person responsible, for the purposes of section 24E, is defined in section 24E(6).
230.As with section 24C(3) notices, where a notice given under section 24E(2) suspends a felling licence, the licence may be suspended in full or partially, and the suspension comes to an end when the suspension period set out in the notice expires (unless NRW gives a further notice lifting the suspension on an earlier date).
231.If a notice given under section 24C(3) or 24E(2) makes provision to vary or amend a felling licence, or to suspend or revoke a felling licence, and a person fells trees in contravention of those provisions, that person is likely to be felling trees without the authority of a felling licence.
232.In those circumstances, enforcement action can be taken via section 17 of the Forestry Act 1967 Act. Section 17 provides that it is an offence to fell without the authority of a felling licence, and a person found guilty of the offence will be liable on summary conviction to an unlimited fine (see commentary below on section 42 of the Act, which amends section 17 of the Forestry Act 1967).
Section 40 – Tree Preservation Orders
233.Section 40 inserts a new section 24F (Tree Preservation Orders) into the Forestry Act 1967. It applies if NRW proposes to give a notice under section 24C(3) or 24E(2), and the notice would affect trees that are the subject of a tree preservation order (a “TPO”).
234.The section requires NRW, as the appropriate forestry authority, to notify the authority who made the TPO of the proposal unless the emergency criteria are met. The emergency criteria are met if NRW considers that it is necessary to give the section 24C(3) or section 24E(2) notice in order to respond to an imminent and serious risk of harm to natural beauty or to flora, fauna, geological or physiographical features, or natural habitats. This exception is designed to enable NRW to address any imminent and serious risk of environmental harm without delay.
235.Once the TPO authority has been notified of a proposal to give a notice under section 24C(3) or 24E(2), it may object to the giving of the notice within a prescribed period (to be set out in regulations). Where the TPO authority do not withdraw its objection, NRW must refer the matter to the Welsh Ministers. The Welsh Ministers must consult those set out in 24F(7) before deciding whether to grant or refuse consent for the giving of the notice.
Section 41 – Appeals and Compensation
236.Section 41 inserts seven new sections into the Forestry Act 1967 setting out rights to bring an appeal and rights to claim compensation following the giving of notices under sections 24C(3), 24D(2) and 24E(2).
237.New sections 26A and 26B set out who may bring an appeal against a notice given under section 24C(3), 24D(2) and 24E(2), and specify the grounds on which those appeals may be brought. Section 26A(2) sets out the grounds under which an appeal may be brought against a section 24C(3) notice, and section 26A(3) sets out the ground under which an appeal may be brought against a section 24D(2) notice. Section 26B(2) sets out the grounds under which an appeal may be brought against a section 24E(2) notice.
238.An appeal under section 26A or 26B must be brought by serving a notice on the Welsh Ministers requesting the matter be referred to a Committee appointed in accordance with section 27 of the Forestry Act 1967.
239.New section 26C makes further provisions in relation to appeals. Amongst other things, it allows the Welsh Ministers to set out in regulations the prescribed manner and prescribed period for bringing appeals against notices given under section 24C(3), 24D(2) and 24E(2).
240.As a general rule, notices given under sections 24C(3), 24D(2) and 24E(2) do not take effect until after a person has been given an opportunity to bring an appeal or (in circumstances where an appeal has been brought) until the appeal has been concluded. However, a notice given under those sections can take effect immediately to the extent that (i) the notice suspends a felling licence, or (ii) the notice amends or revokes a felling licence, and NRW considers that the action is necessary in order to respond to an imminent and serious risk of harm to the environmental features described in section 26C(3)(a).
241.Section 41 also inserts new sections 26D, 26E and 26F into the Forestry Act 1967 to provide an entitlement to compensation in certain circumstances following the receipt of a notice given under section 24C(3), 24D(2) or 24E(2). These new sections are to be read alongside the provisions in new section 26G.
242.Sections 26D, 26E and 26F specify who can make a claim for compensation where a notice has been given under section 24C(3), 24D(2) or 24E(2).
243.Section 26D provides an entitlement to compensation where a notice has been given under section 24C(3). An entitlement to compensation arises where the notice has either been cancelled by the Welsh Ministers following an appeal or (if a notice is one that suspends a licence), where the Welsh Ministers have directed NRW to end the suspension.
244.If a section 24C(3) notice is cancelled following an appeal, compensation is payable for any expenses reasonably incurred in connection with the giving of the notice, and for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the giving of the notice.
245.If the Welsh Ministers have directed NRW to end a suspension, compensation is payable for any expenses reasonably incurred in connection with the suspension, and for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the suspension.
246.Section 26E provides an entitlement to compensation where a notice has been given under section 24D(2). Notices under section 24D(2) are only able to require a person to take steps (and are not able to vary, amend, suspend or revoke licences), so compensation rights under section 26E are more limited. The entitlement arises if a section 24D(2) notice has been cancelled by the Welsh Ministers following an appeal, and compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.
247.Section 26F provides an entitlement to compensation where a notice has been given under section 24E(2). Notices given under section 24E(2) are able to amend, suspend or revoke licences where there has been no breach of a licence condition (if the requirements set out in section 24E have been met), so the compensation rights under section 26F are broader.
248.There is an automatic right to compensation for any deprecation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the giving of a notice under section 26E(2), regardless of whether an appeal has been brought. This is similar to the compensation rights that arise under section 10 and 11 of the Forestry 1967 Act where an application for a felling licence is refused.
249.An entitlement to compensation also arises under section 26F where a notice given under section 24E(2) has either been cancelled by the Welsh Ministers following an appeal or (if a notice is one that suspends a licence), where the Welsh Ministers have directed NRW to end the suspension.
250.If a section 24E(2) notice is cancelled following an appeal, compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.
251.If the Welsh Ministers have directed NRW to end a suspension made by a section 24E(2) notice, compensation is payable for any expenses reasonably incurred in connection with the suspension.
252.New Section 26G makes further provision in relation to compensation claims. Amongst other things, it allows the Welsh Ministers to set out in regulations the prescribed manner and prescribed period for claiming compensation and provides further details about claiming compensation for deterioration in the quality of timber.
Section 42 - Penalty for felling without licence
253.Section 42 amends section 17 of the Forestry Act 1967 to provide that, in respect of land in Wales, the penalty for felling a tree without the authority of a felling licence is an unlimited fine. Trees are felled without the authority of a felling licence if there is no licence in place (for instance because a licence has not been granted, or because a licence has been suspended or revoked by a notice given under section 24C(3) or 24E(2)), or if trees are felled in contravention of a felling licence (including in contravention of terms or conditions of a licence that have been varied, amended or inserted by a notice given under section 24C(3) or 24E(2)).
Section 43 – Service of documents
254.Section 43 inserts a new subsection (6) into section 30 of the Forestry Act 1967 to provide that any references in Part 2 of that Act to the giving of a notice or document by NRW are to be treated as if they were references to the serving of a notice or document. This ensures that the criteria in section 30 of the Forestry Act 1967 (about when notices or documents are deemed to have been served) apply consistently to all notices and documents given by NRW under Part 2 of the Forestry Act 1967.
Section 44 - Consequential amendments to the Forestry Act 1967
255.Section 44 makes a series of amendments to the Forestry Act 1967. These amendments are needed as a result of the changes made to that Act by sections 36 to 43.
