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Significant changes to the Forestry Act 1967 that tree owners in Wales should be aware of
Friday 19th January 2024
Introduction
This post is intended as a brief introduction to the Forestry Act 1967 and recent changes brought about by the Agriculture (Wales) Act 2023. The Agriculture (Wales) Act 2023 serves to amend the Forestry Act 1967, amongst other Acts, by bringing powers up to date and adding flexibility for both the landowner and the governing body, Natural Resources Wales. These amendments include removing the cap on fines for a breach of the Forestry Act, giving flexibility in terms of agreed amendments to felling licences, increasing the conditions that can be included in a Felling Licence as well being able to revoke a felling licence. Other sections of the Forestry Act are also affected and an overview of the changes is provided in sect. 4.
1. Existing exemptions (Forestry Act 1967 Sect. 9 sub-sect. 1 - 3)
The Forestry Act 1967 has exemptions where a Felling Licence may not be required. These exemptions include;
1. Works to trees in a garden
2. Works to trees in an orchard
3. Works to trees in a graveyard
4. Works to trees in a Public Open Space
It should also be noted that pruning works do not need a Felling Licence. Examples of pruning works are;
1. Pollarding
2. Pruning
3. Crown lifting
4. Crown reduction
The above work descriptions must be understood and not confused with other operations which may well require a Felling Licence. It should also be noted that works which result in the death of a tree could be considered as being "removal" and therefore subject to the Forestry Act 1967 and any breach thereof.
A Felling Licence is not required to fell less than 5 cubic metres per calendar quarter provided that no more than 2 cubic metres are sold.
Trees with a diameter of 80mm or less when measured at 1.5m above ground level are not protected under the Forestry Act. This increases to 100mm or less for 3thinning operations and 150mm or less for cutting coppice.
A Felling Licence is not required where full planning permission is given from the Local Planning Authority for the agreed development of land.
The same applies to works carried out by statutory undertaker, for example Scottish Power or in order to comply with an Act of Parliament, e.g. to comply with a 4Notice served by the Local Authority under the Highways Act 1980.
Finally, a Felling Licence may not be required if you are issued with a Statutory Plant Health Notice.
2. Dangerous Trees (Forestry Act 1967 Sect. 9, sub-sect. (4)(a))
For a tree to be exempt from the Forestry Act 1967 the danger must be real and imminent rather than perceived.
Although it is always recommended that contact is made with your Natural Resources Wales Area Officer this may not always be possible, for example in an emergency situation. Where such a situation exists then evidence to defend the urgent nature of the work will be required. This would normally be considered as an accredited arboriculturalists report and photographic evidence taken at the time.
3. For the prevention of an abatement of a nuisance (Forestry Act 1967 Sect. 9, Sub-sect. (4)(a) )
An exemption to the application process exists for the "abatement of a nuisance". The Act provides scant details on what would be considered as a "Nuisance". However, using other legislation such as the Town & Country Planning Act 1947 sect.28(5) the consensus is that works required for the abatement of a nuisance do not require a Felling Licence. Provided that the works are, for example, "lopping", (or more accurately "pruning"), rather than whole tree removal or that the works would not leave the tree in such a state as to warrant removal, then there would be no need for a Felling Licence. The lines blur where a tree or trees are to be removed. Should whole tree removal be required then it is strongly suggested that Natural Resources Wales are contacted and asked for their input.
4. Recent changes to the Forestry Act 1967 brought about by the Agriculture (Wales) Act 2023
The Agriculture (Wales) Act 2023 provides amendments to various Acts including the Forestry Act 1967. These amendments can be found in Sect. 36 of the Agriculture (Wales ) Act and amend Part 2 of the Forestry Act 1967 (c. 10) as explained below;
(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).
*"Penalty for felling without a licence" removes the limited fines imposed by the Forestry Act 1967, originally set as "...Level 4 on the standard scale or twice the sum which appears to the court to be the value of the tree...".
The results are that the Forestry Act Sect. 17(1)(a) now reads "...in relation to an offence committed in Wales, liable on summary conviction to a fine". Putting this in context there is now no limit to the fines which can be imposed for felling trees without a Felling Licence.
Sect. 37 of the Agriculture (Wales) Act 2023 now includes additional Conditions that can be attached to a Felling Licence as follows;
(i) conserving or enhancing natural beauty
(ii) conserving flora, fauna, geological or physiological features or natural habitats.
The above is self-explanatory and needs no further description beyond the fact that the natural surroundings and ecological features of trees involved are now a material consideration to the decision-making process for approval, or otherwise, of a felling licence.
Sect. 38 of the Agriculture (Wales) Act 2023 provides a mechanism by which both parties, i.e. Natural Resources Wales and the applicant, can agree an amendment to the felling licence application by mutual agreement. This would have particular benefits in terms of Sect. 37 where an area within the proposed felling site has the features described. In theory, this area could be omitted without the need to withdraw the felling licence application and reapply.
Sect. 39 of the Agriculture (Wales) Act 2023 concerns varying, suspending or revoking of felling licences. This section increases the powers of Natural Resources Wales to vary, suspend or revoke a felling licence if the conditions of the licence are not being, or have not been, complied with.
Sect. 40 of the Agriculture (Wales) Act 2023 concerns Tree Preservation Orders which may also protect trees which become the subject of a felling licence. This section now includes details of Natural Resources Wales responsibility to provide details in writing of the felling licence application to the Local Planning Authority responsible for the Tree Preservation Order (sect. 40 (3)). Should the Local Planning Authority object to the felling licence application then the matter is sent on to the Welsh Ministers who can decide to;
5(a) grant consent to the giving of the notice
5(b) refuse to grant consent
Before Ministers grant consent, or refuse the application they must consult with the applicant, amongst other parties.
Sect. 41 of the Agriculture (Wales) Act 2023 provides details on appeals and compensation. The section provides a whole range of situations where an appeal may be made, or compensation applied for. Reasons for appeal are varied and include (26A(2)(d)[that} "... a step specified in the notice is unreasonable or disproportionate" or that 26A(2)(b) [that]..." suspending or revoking the felling licence is unreasonable or disproportionate".
5. Caveats
This post is my interpretation of the relevant Acts and is intended as a brief overview of changes to legislation only. It is by no means exhaustive of the changes now applied and checks with Natural Resources Wales should always be undertaken prior to the commencement of any works.
Any queries should be raised with Natural Resources Wales directly and no felling works should be carried out without their prior agreement.