Agriculture (Wales) Act 2023

PART 4 FORESTRY

36 Overview of Part

This Part amends Part 2 of the Forestry Act 1967 (c. 10) in relation to Wales—

(a) to expand the range of circumstances in which conditions may be attached to tree felling licences;

(b) to enable tree felling licences to be amended by agreement;

(c) where there is or has been a breach of a condition of a tree felling licence, to enable the Natural Resources Body for Wales to vary or remove the conditions of the licence, or to add further conditions, or to suspend or revoke the licence, and to require steps to be taken following the breach;

(d) where tree felling in accordance with a tree felling licence is causing, or is likely to cause, significant harm to certain aspects of the environment, to enable the Natural Resources Body for Wales to amend the tree felling licence or to suspend or revoke it;

(e) to remove the limit on fines that may be imposed for the offence of felling trees without the authority of a tree felling licence;

(f) to make provision consequential upon the amendments referred to in paragraphs (a), (c) and (d).

37 Conditions of tree felling licences

In section 10 of the Forestry Act 1967 (c. 10) (application for felling licence and decision of appropriate authority), in subsection (2), at the end of paragraph (b), insert “; or

(c) in relation to land in Wales, after consultation with the applicant for the licence, for the purpose of—

(i) conserving or enhancing natural beauty;

(ii) conserving flora, fauna, geological or physiographical features, or natural habitats.”

38 Amendment of tree felling licences by agreement

(1) In section 10 of the Forestry Act 1967 (c. 10) (application for felling licence and decision of appropriate authority), after subsection (3) insert—

“(3A) The‍ Natural Resources Body for Wales, and the person responsible, may agree to amend the licence at any time (but see section 10A, which imposes further requirements in relation to amendments in respect of trees to which a tree preservation order relates).

(3B) For the purposes of subsection (3A) of this section, and section 10A, the person responsible is—

(a) the applicant for the licence, if the applicant has such estate or interest in the land as is referred to in subsection (1), or

(b) if the applicant no longer has such estate or interest, a person who has such estate or interest.”

(2) After section 10 of the Forestry Act 1967, insert—

“10A Amendments made under section 10(3A) that affect tree preservation orders

(1) The provisions of this section apply if—

(a) an amendment to a licence under section 10(3A) is proposed in respect of any trees to which a tree preservation order relates, and

(b) the Natural Resources Body for Wales does not consider that the amendment is necessary to respond to an imminent and serious risk of harm to—

(i) natural beauty, or

(ii) flora, fauna, geological or physiographical features, or natural habitats.

(2) Before amending the licence, the Natural Resources Body for Wales must give notice in writing of the proposal to the authority by whom the tree preservation order was made.

(3) If, within the prescribed period, the authority by whom the tree preservation order was made objects to the amendment in so far as it affects trees to which the tree preservation order relates, and does not withdraw its objection, the Natural Resources Body for Wales must refer the matter to the Welsh Ministers.

(4) If a matter is referred to the Welsh Ministers under subsection (3), the Welsh Ministers may decide to—

(a) grant consent to the amendment, or

(b) refuse to grant consent (in which case the amendment cannot be made).

(5) Where the Natural Resources Body for Wales has given notice in writing under subsection (1) to an authority in respect of a proposed amendment, the proposed amendment cannot be made until—

(a) the period prescribed under subsection (3) has ended without the authority having objected (or, if the authority has objected, that objection has been withdrawn), or

(b) if the Natural Resources Body for Wales has referred the matter to the Welsh Ministers, the Welsh Ministers have given their decision on the matter.

(6) Before deciding whether to grant or refuse consent under subsection (4), the Welsh Ministers must consult—

(a) the person responsible (see section 10(3B));

(b) the Natural Resources Body for Wales;

(c) the authority by whom the tree preservation order was made.”

39 Varying, suspending or revoking tree felling licences

After section 24B of the Forestry Act 1967 (c. 10) (inserted by the Environment Act 2021 (c. 30)), insert—

“24C Variation of conditions or suspension or revocation of licence following breach of condition: Wales

(1) The provisions of this section apply if, in relation to a felling licence granted in relation to land in Wales, the Natural Resources Body for Wales considers that any condition of the licence—

(a) has not been complied with, or

(b) is not being complied with.

(2) But this section does not apply if the condition is one that requires works to be carried out (as to which see section 24).

(3) The Natural Resources Body for Wales may give to the person responsible a notice which makes provision for one or more of the following—

(a) a suspension of the felling licence, either in full or in part;

(b) a variation or removal of a condition of the felling licence or an imposition of a new condition;

(c) where the circumstances referred to in subsection (4) apply, a revocation of the felling licence.

(4) The circumstances are that the condition that has not been complied with, or is not being complied with, was imposed for the purpose mentioned in section 10(2)(c).

(5) A notice given under subsection (3) may also make provision—

(a) requiring the person‍ to whom the notice was given to take such steps as may be specified in the notice, and

(b) specifying the period (not being less than the prescribed period after the notice has become operative) within which those steps must be‍ taken.

(6) A notice given under subsection (3) must—

(a) set out the reasons for giving the notice;

(b) specify the condition that has not been or is not being complied with;

(c) if the notice suspends the felling licence, specify the period for which the licence is to be suspended;

(d) if the notice varies conditions or revokes the felling licence, specify the date upon which the variation or revocation takes effect;

(e) if the notice suspends the felling licence in part, specify the felling that may continue.

(7) Where a notice given under subsection (3) suspends a felling licence, either in full or in part, the suspension ends with the earlier of—

(a) the expiry of the period specified in the notice‍ in accordance with subsection (6)(c), and

(b) the date specified in any further notice given to the person responsible by the Natural Resources Body for Wales under this paragraph.

(8) The Natural Resources Body for Wales may give a further notice under subsection (7)(b) if it considers that the suspension should be lifted sooner than the‍ end of the period specified in the notice given under subsection‍ (3).

(9) If—

(a) a notice given under subsection (3) requires a person to take steps in accordance with subsection (5)(a), and

(b) those steps have not been‍ taken before the end of the period specified in that notice in accordance with subsection (5)(b),

the Natural Resources Body for Wales may enter on the land and take those steps.

(10) A person who, without reasonable excuse, fails to take any steps required by a notice given under subsection (3) commits an offence and is liable on summary conviction to a fine (but this does not affect the powers of the Natural Resources Body for Wales under subsection (9)).

(11) Proceedings in respect of an offence under subsection (10)—

(a) must be commenced within the period of six months starting on the day the person commencing the proceedings becomes aware of the offence;

(b) may not be commenced more than two years after the date of the offence.

(12) A person who is required by a notice under subsection (3) to take steps may take the steps notwithstanding any lease, covenant or contract relating to the trees or land affected by the notice.

(13) For the purposes of this sectio‍n, “the person responsible” is—

(a) the applicant for the licence, if on the date the notice is given the applicant has such estate or interest in the land as is referred to in section 10(1);

(b) in any other case,‍ a person who has such estate or interest in the land as is referred to in section 10(1) on that date.

24D Notice to subsequent estate or interest holder requiring steps to be taken

(1) Subsection (2) applies where—

(a) a notice has been given to a person under section 24C(3) requiring the person to take steps,

(b) steps required by the notice have not been taken, and

(c) before the time specified in the notice (within which those steps must be taken) has expired, the person ceases to have the estate or interest in the land by reference to which the notice was given.

(2) The Natural Resources Body for Wales may give to a person who has such estate or interest in the land as is referred to in section 10(1) a notice—

(a) requiring the steps that were not taken under the notice described in subsection (1) to be taken, and

(b) specifying the period (not being less than the prescribed period after the notice has become operative) within which those steps must be taken.

(3) A notice given under subsection (2) must set out the reasons for giving the notice.

(4) If steps required by a notice under subsection (2) have not been taken before the end of the period specified in the notice, the Natural Resources Body for Wales may enter on the land and take those steps.

(5) A person who, without reasonable excuse, fails to take any steps required by a notice under subsection (2) commits an offence and is liable on summary conviction to a fine (but this does not affect the powers of the Natural Resources Body for Wales under subsection (4)).

(6) Proceedings in respect of an offence under subsection (5)—

(a) must be commenced within the period of six months starting on the day the person commencing the proceedings becomes aware of the offence;

(b) may not be commenced more than two years after the date of the offence.

(7) A person who is required by a notice under subsection (2) to take steps may take the steps notwithstanding any lease, covenant or contract relating to the trees or land affected by the notice.

(8) The reference in subsection (1) to a notice under section 24C(3) includes a notice given under this section.‍

24E Suspension, amendment or revocation of tree felling licence where no breach of condition: Wales

(1) The provisions of this section apply if, in relation to a felling licence granted in relation to land in Wales, the Natural Resources Body for Wales considers that felling in accordance with the licence is causing, or is likely to cause, significant harm to—

(a) natural beauty, or

(b) flora, fauna, geological or physiographical features, or natural habitats.

(2) The Natural Resources Body for Wales may give to the person responsible a notice which makes provision for one or more of the following—

(a) a suspension of the felling licence, either in full or in part;

(b) an amendment of the felling licence;

(c) if the Natural Resources Body for Wales considers that amending the felling licence would not prevent the harm that is being caused or is likely to be caused, a revocation of the felling licence.

(3) A notice given under subsection (2) must—

(a) set out the reasons for giving the notice;

(b) specify the harm that felling in accordance with the licence is causing or is likely to cause;

(c) if the notice suspends the felling licence, specify the period for which the licence is to be suspended;

(d) if the notice amends or revokes the felling licence, specify the date upon which the amendment or revocation takes effect;

(e) if the notice suspends the felling licence in part, specify the felling that may continue.

(4) Where a notice given under subsection (2) suspends a felling licence, either in full or in part, the suspension ends with the earlier of—

(a) the expiry of the period specified in the notice‍ in accordance with subsection (3)(c), and

(b) the date specified in any further notice given to the person responsible by the Natural Resources Body for Wales under this paragraph.

(5) The Natural Resources Body for Wales must give a further notice specifying a date under subsection (4)(b) (to bring the suspension to an end) if it considers that felling in accordance with the felling licence (as it would have effect after that date) would neither cause nor be likely to cause the harm specified in the notice that suspended the licence.

(6) For the purposes of this section, “the person responsible” is—

(a) the applicant for the licence, if on the date the notice is given the applicant has such estate or interest in the land as is referred to in section 10(1);

(b) in any other case, a person who has such estate or interest in the land as is referred to in section 10(1) on that date.”

40 Tree Preservation Orders

After new section 24E of the Forestry Act 1967 (c. 10) (inserted by section 39), insert—

“24F Notices under section 24C(3) or 24E(2) that affect tree preservation orders

(1) The provisions of this section apply if—

(a) the Natural Resources Body for Wales proposes to give a notice under section 24C(3) or 24E(2) in respect of any trees to which a tree preservation order relates, and

(b) the proposed notice does not meet the emergency criteria.

(2) The emergency criteria are met if the proposed notice makes no provision other than—

(a) provision that the Natural Resources Body for Wales considers is necessary to respond to an imminent and serious risk of harm to—

(i) natural beauty, or

(ii) flora, fauna, geological or physiographical features, or natural habitats, or

(b) provision that suspends a felling licence.

(3) Before the Natural Resources Body for Wales gives the proposed notice it must give notice in writing of the proposal to the authority by whom the tree preservation order was made.

(4) If, within the prescribed period, the authority by whom the tree preservation order was made objects to the notice in so far as it affects trees to which the tree preservation order relates, and does not withdraw its objection, the Natural Resources Body for Wales must refer the matter to the Welsh Ministers.

(5) If a matter is referred to the Welsh Ministers under subsection (4), the Welsh Ministers may decide to—

(a) grant consent to the giving of the notice, or

(b) refuse to grant consent (in which case the notice cannot be given).

(6) Where the Natural Resources Body for Wales has given notice in writing under subsection (3) to an authority in respect of a proposed notice, the proposed notice cannot be given until—

(a) the period prescribed under subsection (4) has ended without the authority having objected (or, if the authority has objected, that objection has been withdrawn), or

(b) if the Natural Resources for Wales has referred the matter to the Welsh Ministers, the Welsh Ministers have given their decision on the matter.

(7) Before deciding whether to grant or refuse consent under subsection (5), the Welsh Ministers must consult—

(a) the Natural Resources Body for Wales;

(b) the authority by whom the tree preservation order was made;

(c) the applicant for the licence if the applicant has such estate or interest in the land as is referred to in section 10(1) or, in any other case, a person who has such estate or interest in the land.”

41 Appeals and compensation

After section 26 of the Forestry Act 1967 (c. 10), insert—

“26A Appeals against notices given under section 24C(3) and 24D(2)

(1) The following persons have a right to bring an appeal against a notice given under section 24C(3) if the person thinks that any of the grounds set out in subsection (2) applies—

(a) the person to whom the notice was given;

(b) a person who has such estate or interest in the land as is referred to in section 10(1);

(c) the owner of the trees.

(2) The grounds are—

(a) a condition referred to in the notice has been complied with or is being complied with;

(b) suspending or revoking the felling licence is unreasonable or disproportionate;

(c) the variation of a condition of the felling licence, or the imposition of a new condition, is unreasonable or disproportionate;

(d) a step specified in the notice is unreasonable or disproportionate;

(e) where the notice has suspended the felling licence, the suspension should have been brought to an end by a notice given under section 24C(7)(b).

(3) A person to whom a notice has been given under section 24D(2) has a right to bring an appeal against the notice if the person thinks that a step specified in the notice is unreasonable or disproportionate.

(4) An appeal under this section is brought by serving a notice on the Welsh Ministers requesting that they refer the matter to a committee appointed in accordance with section 27 (and see section 26C for further provision about such requests).

26B Appeals against notice given under section 24E(2)

(1) The following persons have a right to bring an appeal against a notice given under section 24E(2) if the person thinks that any of the grounds set out in subsection (2) applies—

(a) the person to whom the notice was given;

(b) a person who has such estate or interest in the land as is referred to in section 10(1);

(c) the owner of the trees.

(2) The grounds are—

(a) the felling is not causing the harm specified in the notice or is not likely to cause the harm;

(b) suspending or revoking the felling licence is unreasonable or disproportionate;

(c) an amendment to the felling licence is unreasonable or disproportionate;

(d) where the notice has suspended the felling licence, the suspension should have been brought to an end by a notice given under section 24E(4)(b).

(3) An appeal under this section is brought by serving a notice on the Welsh Ministers requesting that they refer the matter to a committee appointed in accordance with section 27 (and see section 26C for further provision about such requests).

26C Further provision about appeals brought under sections 26A and 26B

(1) A request made to the Welsh Ministers under section 26A or 26B must be made in the prescribed manner and within the prescribed period.

(2) A notice given under section 24C(3), 24D(2) or 24E(2) does not take effect until the expiration of the prescribed period and, where a request is made to the Welsh Ministers under section 26A or 26B (as the case may be), until the conclusion of any proceedings in pursuance of the request.

(3) But subsection (2) does not apply (and the notice may take effect immediately) to the extent that—

(a) the notice makes provision that the Natural Resources Body for Wales considers is necessary to respond to an imminent and serious risk of harm to—

(i) natural beauty, or

(ii) flora, fauna, geological or physiographical features, or natural habitats, or

(b) the notice makes provision that suspends a felling licence.

(4) Where a request is made to the Welsh Ministers under section 26A or 26B, the Welsh Ministers must, unless they are of the opinion that the grounds for the request are frivolous, refer the matter to the committee appointed in accordance with section 27.

(5) The committee to whom a matter is referred under this section must, after complying with section 27(3), provide the Welsh Ministers with a report in relation to the reference.

(6) After considering the report, the Welsh Ministers must—

(a) in the case of a request made on the ground in subsection 26A(2)(e) or 26B(2)(d) (suspension should have been ended)—

(i) direct the Natural Resources Body for Wales to give a notice under section 24C(7)(b) or 24E(4)(b) (as the case may be) ending the suspension, or

(ii) give the person who made the request a notice setting out the reasons why a direction under sub-paragraph (i) is not being given;

(b) in the case of any other request, confirm or cancel the notice to which the reference relates.

26D Compensation following receipt of a notice given under section 24C(3)

(1) If in the case of any trees, the Natural Resources Body for Wales gives a person a notice under section 24C(3), the relevant person is entitled to compensation in accordance with this section and section 26G.

(2) If the notice given under section 24C(3) is cancelled under section 26C(6)(b), compensation is payable—

(a) for any expenses reasonably incurred in connection with the giving of the notice;

(b) for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber comprised in the trees as a result of the giving of the notice.

(3) If a direction is given to the Natural Resources Body for Wales under section 26C(6)(a)(i) to give a notice ending a suspension imposed by the notice given under section 24C(3), compensation is payable—

(a) for any expenses reasonably incurred in connection with the suspension;

(b) for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber comprised in the trees as a result of the suspension.

(4) For the purposes of this section “the relevant person” is—

(a) where compensation is payable for expenses reasonably incurred, and those expenses have been incurred in connection with a requirement to take steps, the person to whom the notice was given;

(b) where compensation is payable for expenses reasonably incurred, and those expenses have been incurred otherwise than in connection with a requirement to take steps, a person who had such estate or interest in the land as is referred to in section 10(1) at the time the expenses were incurred;

(c) in the case of compensation for depreciation in the value of the trees, the owner of the trees.

26E Compensation following receipt of a notice given under section 24D(2)

(1) If in the case of any trees, the Natural Resources Body for Wales gives a person a notice under section 24D(2), the person to whom the notice was given is entitled to compensation in accordance with this section and section 26G.

(2) If the notice given under section 24D(2) is cancelled under section 26C(6)(b), compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.

26F Compensation following receipt of a notice given under section 24E(2)

(1) If in the case of any trees, the Natural Resources Body for Wales gives a person a notice under section 24E(2), the relevant person is entitled to compensation in accordance with this section and section 26G.

(2) Compensation is payable for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber comprised in the trees as a result of the giving of the notice under section 24E(2) (regardless of whether an appeal has been brought under section 26B).

(3) If the notice given under section 24E(2) is cancelled under section 26C(6)(b), compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.

(4) If a direction is given to the Natural Resources Body for Wales under section 26C(6)(a)(i) to give a notice ending a suspension imposed by the notice given under section 24E(2), compensation is payable for any expenses reasonably incurred in connection with the suspension.

(5) For the purposes of this section “the relevant person” is—

(a) where compensation is payable for expenses reasonably incurred, a person who had such estate or interest in the land as is referred to in section 10(1) at the time the expenses were incurred;

(b) in the case of compensation for depreciation in the value of the trees, the owner of the trees.

26G Compensation under section 26D, 26E and 26F – further provision

(1) Compensation under sections 26D, 26E and 26F is recoverable from the Natural Resources Body for Wales.

(2) A claim for compensation under section 26D, 26E or 26F must be made in the prescribed manner and within the prescribed period.

(3) Where a claim for compensation is made under section 26D or 26F for deterioration in the quality of the timber—

(a) if the trees have been felled, no claim may be made after the expiration of one year from the date of the felling;

(b) where a claim is made in reliance on section 26F(2) (depreciation in the value of the trees as a result of the giving of a notice under section 24E(2)), no claim may be made in respect of deterioration occurring more than ten years after the notice was given.

(4) In calculating compensation that is payable under section 26D or 26F—

(a) no account is to be taken of deterioration in the quality of the timber that is attributable to neglect of the trees;

(b) the value of the trees at any time is to be ascertained on the basis of prices current at the date of the claim.

(5) If—

(a) after giving notice under section 24E(2) that amends a felling licence, the Natural Resources Body for Wales notifies the person specified in subsection (6) that it is prepared to further amend the licence under section 10(3A) so that it has the same effect as it had immediately before the licence was amended by the notice given under section 24E(2), or

(b) after giving notice under section 24E(2) that revokes a felling licence, the Natural Resources Body for Wales notifies the person mentioned in subsection (7) that it is prepared to grant a new licence that has the same effect as the licence that was revoked,

then in calculating the compensation that is payable under section 26F(2), no account is to be taken of deterioration occurring after the Natural Resources Body for Wales has notified the relevant person in accordance with this subsection.

(6) For the purposes of subsection (5)(a), the relevant person is—

(a) the applicant for the licence, if the applicant has such estate or interest in the land as is referred to in section 10(1), or

(b) if the applicant no longer has such estate or interest, a person who has such estate or interest.

(7) For the purposes of subsection (5)(b), the relevant person is the person who has such estate or interest in the land as is referred to in section 10(1).

(8) Any question of disputed compensation arising from a claim made under section 26D, 26E or 26F is to be determined in accordance with section 31.”

42 Penalty for felling without licence

In section 17 of the Forestry Act 1967 (c. 10), in subsection (1), in paragraph (a), omit the words after “fine” to the end.‍

43 Service of documents

(1) Section 30 (service of documents) of the Forestry Act 1967 (c.10) is amended as follows.

(2) After subsection (5), insert—

“(6) For the purposes of this section, any reference in this Part to the giving of a notice or document by the Natural Resources Body for Wales is to be treated as if it were a reference to the serving of a document.”

44 Consequential amendments to the Forestry Act 1967

(1) The Forestry Act 1967 (c. 10) is amended as follows.

(2) In section 10 (application for felling licence and decision of appropriate authority), in subsection (2), at the end of paragraph (a), omit “or”.

(3) In section 12 (conditional licences), in subsection (1), after “section 10(2)” insert “(a) or (b)”.

(4) In section 26 (expenses etc. in connection with notices)—

(a) in the heading, at the end, insert ‍“, s. 24C(3) or s. 24D(2)”;

(b) in subsection (1‍)—

(i) after “under section 24”, insert “, section 24C(9) or section 24D(4)”;

(ii) for “under that section” substitute “under either of those sections”‍.

(5) In section 27 (Committees of reference)—

(a) in the heading, for “and 25” substitute “, 25, 26A, 26B and 26C”;

(b) in subsection (1), for “and 25” substitute “, 25, 26A, 26B and 26C”.

(6) In section 29 (provisions relating to mortgages and settled land)—

(a) in subsection (1), in paragraph (a),‍ for “or section 26” substitute “, 26, 26D, 26E or 26F”;

(b) in subsection (3),‍ for “or section 26” substitute “, 26, 26D, 26E or 26F”.

(7) In the heading of section 31 (determination of matters arising under sections 11, 14, 21 and 22), for “and 22” substitute “, 2‍2, 26D, 26E and 26F”.