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

Made: 13th February 2019

Laid before the Scottish Parliament: 15th February 2019

Coming into force: 1st April 2019

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 85(2) and (7) of the Forestry and Land Management (Scotland) Act 2018 .

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the Forestry and Land Management (Scotland) Act 2018 (Commencement, Transitional and Saving Provisions) Regulations 2019 and come into force on 1 April 2019.

• (2) In these Regulations—

• “the 1967 Act” means the Forestry Act 1967 ,

• “the 1979 Act” means the Forestry Act 1979 ,

• “the 1979 Regulations” means the Forestry (Felling of Trees) Regulations 1979 ,

• “the 2018 Act” means the Forestry and Land Management (Scotland) Act 2018,

• “the appointed day” means the day appointed by regulation 2,

• “Forestry Commissioners” means the Forestry Commissioners constituted under the Forestry Acts 1919 to 1945 and continued in force by section 1(1) the 1967 Act,

and any reference to a numbered regulation is, unless expressly indicated otherwise, a reference to the regulation so numbered in these Regulations.

Appointed day

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1 April 2019 is the day appointed for the coming into force of the 2018 Act, so far as not already in force .

Transitional: applications for a felling licence made but not determined before the appointed day – cases which are to be treated as applications for felling permission

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• (1) An application for a felling licence under section 10 of the 1967 Act which was made, but not determined, before the appointed day is, on and after that day, to be treated as if it were an application for a felling permission under section 25 of the 2018 Act.

• (2) Paragraph (1) does not apply to an application for a felling licence—

• (a) which was postponed before the appointed day by a notice served on the applicant under section 13(2) of the 1967 Act,

• (b) which was postponed under section 13(2) of the 1967 Act, but is under consideration again having satisfied the requirement set out in the notice of postponement before the appointed day,

• (c) which was made before the appointed day in response to a notice served on the applicant under section 10(5) of the 1967 Act,

• (d) which was made before the appointed day and which relates to the felling of trees in accordance with a plan of operations or other working plan approved by the Forestry Commissioners as described in section 14(1) of the 1967 Act,

• (e) in which the Forestry Commissioners have indicated to the applicant during consultation under section 12(1) of the 1967 Act , in writing before the appointed day, that they are minded to grant a licence under section 10(2) of the 1967 Act subject to specified conditions.

• (3) A person who has made an application of the type referred to in paragraph (1) is to be treated for all purposes as if they were a person entitled to make such an application under section 25 of the 2018 Act.

• (4) For the purposes of this regulation, “determined” means that the application has been disposed of by the Forestry Commissioners by way of—

• (a) a decision to grant a felling licence (with or without conditions), under section 10(2) and, as applicable, 12(1) of the 1967 Act,

• (b) a decision to refuse to grant a felling licence under section 10(2), or a deemed refusal to grant a licence under section 13(1), of the 1967 Act, or

• (c) a decision to refer an application relating to trees to which a tree preservation order relates to the authority that made the order or to the Scottish Ministers, as the case may be, in terms of section 15(1)(b) or by a referral required under section 15(2)(a) of the 1967 Act.

Saving: applications for a felling licence made but not determined before the appointed day – cases which are to be determined under the 1967 Act

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• (1) Where paragraph (2) applies, the provisions referred to in paragraph (3) continue to have effect, subject to the modifications in paragraph (4), on and after the appointed day as they did immediately before that day.

• (2) This paragraph applies to an application for a felling licence in the circumstances referred to in regulation 3(2).

• (3) The provisions are—

• (a) sections 10, 12 to 15, 30, 34, 35, 48 and 49 and schedule 3 of the 1967 Act , and

• (b) regulations 1, 3, 6 and 7 and schedule 1 of the 1979 Regulations.

• (4) The modifications are—

• (a) section 10 of the 1967 Act is to be read as if—

• (i) references in that section to “the appropriate forestry authority” were references to “the Scottish Ministers”,

• (ii) the words “complying with their duty of” in subsection (2)(b) were omitted, and

• (iii) subsection (4)(b) were omitted,

• (b) section 12 of the 1967 Act is to be read as if the references to “the appropriate forestry authority” in subsection (1) were references to “the Scottish Ministers”,

• (c) section 13 of the 1967 Act is to be read as if—

• (i) subsection (1) were omitted,

• (ii) the references to “the appropriate forestry authority” in subsection (2) were references to “the Scottish Ministers”, and

• (iii) the words from “Where” to the end of subsection (2) were omitted,

• (d) section 14 of the 1967 Act is to be read as if—

• (i) the first reference in subsection (1) and all references in subsections (2) and (3) to “the appropriate forestry authority” were references to “the Scottish Ministers”, and

• (ii) subsection (5) were omitted,

• (e) section 15 of the 1967 Act is to be read as if—

• (i) references in that section to “the appropriate forestry authority” were references to “the Scottish Ministers”, and

• (ii) references to “the Minister” were references to “the Scottish Ministers”,

• (iii) for subsection (2)(a) there were substituted—

(a) the Scottish Ministers shall deal with the application and in doing so shall have regard to that objection;

• (f) section 30 of the 1967 Act is to be read as if the reference in that section to “the appropriate forestry authority” were a reference to “the Scottish Ministers”,

• (g) section 48 of the 1967 Act is to be read as if—

• (i) the references in subsection (1A)(a) to “the Commissioners” were references to “the Scottish Ministers”,

• (ii) subsection (2) were omitted, and

• (iii) the reference to “the appropriate forestry authority” in subsection (3) were a reference to “the Scottish Ministers”,

• (h) regulation 6 of the 1979 Regulations is to be read as if—

• (i) the reference to “the Conservator” were a reference to “the Scottish Ministers”, and

• (ii) the second reference to “the Commissioners” were a reference to “the Scottish Ministers”,

• (i) regulation 7 of the 1979 Regulations is to be read as if the reference to “the Commissioners” in that regulation were a reference to “the Scottish Ministers”,

• (j) Form 3 in schedule 1 of the 1979 Regulations is to be read as if—

• (i) the reference to “the Forestry Commissioners” were a reference to “the Scottish Ministers”, and

• (ii) the reference to “the Commissioners” were a reference to “the Scottish Ministers”.

Transitional: felling licences granted under the 1967 Act after the appointed day – to be treated as felling permissions

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• (1) A felling licence granted by the Scottish Ministers in determining an application in the circumstances referred to in regulation 3(2) after the appointed day is, on and after the date on which it is granted, to be treated as if it were a felling permission granted under section 27 of the 2018 Act.

• (2) Paragraph (1) does not apply for the purposes of making, considering or determining a request for a review of the Scottish Ministers' decision—

• (a) to refuse to grant a felling licence, or

• (b) to grant a felling licence subject to conditions,

which the applicant would have been entitled to make in terms of section 16 of the 1967 Act and regulation 8 of the 1979 Regulations (as applied and modified by regulation 6), but has not requested before the expiry of the period referred to in regulation 8 of the 1979 Regulations.

• (3) A condition attached to a felling licence referred to in paragraph (1) is to be treated as if it were a condition applied to a felling permission under section 27(4) of the 2018 Act.

• (4) The provision made in—

• (a) section 27(7) (variation and revocation of conditions),

• (b) section 38 (registration of notices to comply),

• (c) section 39 (registered notices to comply: offence),

• (d) section 40 (registration of notices of variation),

• (e) section 41 (registration of notices of discharge from compliance),

• (f) section 42 (meaning of “register”),

• (g) section 43 (descriptions of land),

• (h) section 44 (receipt of notices by Keeper),

• (i) section 56 (registration of remedial notices), and

• (j) section 57 (registered remedial notices: offence),

of the 2018 Act does not apply to a condition referred to in paragraph (3) or to any restocking direction issued under section 36 of the 2018 Act in relation to such a condition.

Saving: applications for a felling licence determined under the 1967 Act after appointed day - review

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• (1) Where paragraph (2) applies, the provisions referred to in paragraph (3) continue to have effect, subject to the modifications in paragraph (4), on and after the appointed day, as they did immediately before that day.

• (2) This paragraph applies to a request for a review of a decision of the Scottish Ministers under section 10(2) or 13(1) of the 1967 Act (as modified by regulation 4(4))—

• (a) to refuse to grant a felling licence, or

• (b) to grant a felling licence subject to conditions,

in determining an application in the circumstances referred to in regulation 3(2).

• (3) The provisions are—

• (a) sections 16, 30, 34 and 35 and 49 of the 1967 Act, and

• (b) regulations 1, 3 and 8 and schedule 1 of the 1979 regulations.

• (4) The modifications are—

• (a) section 16 of the 1967 Act is to be read as if—

• (i) the reference in subsection (1) to “the appropriate forestry authority” were a reference to “the Scottish Ministers”, and

• (ii) for subsection (2) there were substituted—

(2) A person aggrieved by the refusal or conditions may by a notice served within the prescribed time and in the prescribed manner request the Scottish Ministers to refer the matter to a person appointed by them for that purpose.

• (b) section 30 of the 1967 Act is to be read as if the reference to “the appropriate forestry authority” were a reference to “the Scottish Ministers”,

• (c) regulation 8 of the 1979 Regulations is to be read as if—

• (i) the reference in paragraph (1) to “the appropriate Minister” were a reference to “the Scottish Ministers”,

• (ii) paragraph (1)(b) were omitted, and

• (iii) for paragraph (2) there were substituted—

(2) Any notice under section 16(2) of the Act shall be in Form 4 or Form 6 according to whether the case falls within sub-paragraph (a) or (c) of paragraph (1).

• (d) Form 4 in schedule 1 of the 1979 Regulations is to be read as if—

• (i) the references to “the Forestry Commissioners” were a reference to “the Scottish Ministers”,

• (ii) for the words “to a committee appointed under section 27 of the 1967 Act” there were substituted “ a person appointed under section 16 of the 1967 Act ”,

• (iii) the reference in numbered paragraph (1) to “the committee” were a reference to “a committee appointed under section 27 of the 1967 Act”,

• (iv) the reference in numbered paragraph (2) to “a committee” were a reference to “a committee appointed under section 27 of the 1967 Act”, and

• (v) the references to “the Secretary of State for Scotland, New St Andrews House, St James Centre, Edinburgh, EH1 3SX” were a reference to “the Scottish Ministers, St Andrews House, Regent Road, Edinburgh, EH1 3DG”,

• (e) Form 6 in schedule 1 of the 1979 Regulations is to be read as if—

• (i) the reference to “the Forestry Commissioners” were a reference to “the Scottish Ministers”, and

• (ii) the reference to “the Secretary of State for Scotland, New St Andrews House, St James Centre, Edinburgh, EH1 3SX” were a reference to “the Scottish Ministers, St Andrews House, Regent Road, Edinburgh, EH1 3DG”.

Saving – applications for felling licence determined under the 1967 Act after the appointed day - compensation

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• (1) Where paragraph (2) applies, the provisions referred to in paragraph (3) continue to have effect, subject to the modifications in paragraph (4), on and after the appointed day as they did immediately before that day.

• (2) This paragraph applies to a decision of the Scottish Ministers to refuse to grant a felling licence in determining an application in the circumstances referred to in regulation 3(2).

• (3) The provisions are—

• (a) section 10(4)(a), 11, 29 to 31, 34, 35, 48 and 49 of the 1967 Act , and

• (b) regulation 1, 3 and 5 and schedule 1 of the 1979 Regulations.

• (4) The modifications are—

• (a) section 10(4)(a) of the 1967 Act is to be read as if the reference to “the appropriate forestry authority” were a reference to “the Scottish Ministers”,

• (b) section 11 of the 1967 Act is to be read as if—

• (i) the references to “the appropriate forestry authority” were references to “the Scottish Ministers”,

• (ii) for subsections (2) and (3) there were substituted—

(2) Compensation under this section shall be recoverable from the Scottish Ministers on a claim made in the form prescribed for that purpose in regulation 5 and Form 2 of the 1979 Regulations. (3) Claims for compensation in the case of any trees may be made from time to time in respect of deterioration taking place after the refusal of a felling licence for those trees but no such claim shall be made more than 12 months after the date the applicant is notified of the decision to refuse to grant the licence under section 10(6).

, and

• (iii) subsection (5) were omitted,

• (c) section 30 of the 1967 Act is to be read as if the reference to “the appropriate forestry authority” were a reference to “the Scottish Ministers”,

• (d) section 48 of the 1967 Act is to be read as if—

• (i) the references to “the appropriate enforcement authority” and “the appropriate forestry authority” were references to “the Scottish Ministers”,

• (ii) subsection (1A)(a) were omitted, and

• (iii) subsection (2) were omitted,

• (e) regulation 5 of the 1979 Regulations is to be read as if the reference to “the Conservator” were a reference to “the Scottish Ministers”, and

• (f) Form 2 in schedule 1 of the 1979 Regulations is to be read as if—

• (i) the references to “the Forestry Commissioners” were references to “the Scottish Ministers”,

• (ii) the alternative paragraph 2 were omitted, and

• (iii) the reference to “the Conservator, Forestry Commission” were a reference to “the Scottish Ministers”.

Saving: applications for felling licence for trees subject to a tree preservation order – referred before appointed day

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• (1) Where paragraph (2) applies, the provisions referred to in paragraph (3) continue to have effect, on and after the appointed day, as they did immediately before that day.

• (2) This paragraph applies to a referral—

• (a) under section 15(1)(b) of the 1967 Act, to the authority that made the tree preservation order, and

• (b) under section 15(2)(a) of the 1967 Act, to the Scottish Ministers,

which was made but not determined before the appointed day.

• (3) The provisions are section 15 and schedule 3 of the 1967 Act.

Saving: tree felling in accordance with an approved working plan – felling licence refused before the appointed day

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• (1) Where paragraph (2) applies, the provisions referred to in paragraph (3) continue to have effect, subject to the modifications in paragraph (4), on and after the appointed day, as they did immediately before that day.

• (2) This paragraph applies where—

• (a) an application for a felling licence related to the felling of trees in accordance with an approved plan of operations or other working plan was refused under section 14(2) of the 1967 Act, and

• (b) the applicant—

• (i) served a notice requiring the appropriate forestry authority to buy the trees specified in the notice under section 14(3) of the 1967 Act before the appointed day, or