Regulation of felling and restocking: consultation response analysis

8. Impact Assessments

8.1 This chapter presents analysis of responses to the impact assessments put forward by the Scottish Government. It describes the consultation question, number of responses, overall level of support for the impact assessments and other related issues raised elsewhere in consultation responses.

8.2 Just over half of the consultation respondents answered Question 21, however as shown in the table below, most did not provide further material for analysis beyond a yes/no answer. Of those that did respond to the question on impact assessments, 13 agreed, 6 disagreed and 1 did not answer the yes/no question but made a general comment in relation to impact assessments.

Question	Yes	No	Not answered	Non-specific response
21: Do you agree with the impact assessments?	13	6	17	1

8.3 A total of 7 comments were made on the impact assessments. These came from one respondent who answered ‘yes’, five respondents who answered ‘no’ and another respondent who made a general statement. Most comments were brief and focused on Business Regulatory Impact Assessment (BRIA) and the Strategic Environmental Assessment (SEA).

Responses to the BRIA

8.4 Four participants identified issues in relation to the BRIA that they would like the Scottish Government to consider:

• Three participants made an identical comment: ‘the impact assessments have failed to recognise the inherent flexibility and strengths of the existing regulations and why it is important … to remain as close as possible to the current position and to make changes only where they will make the processes more transparent, simpler or reduce the potential for inappropriate deforestation’. [Confor] [Scottish Land and Estates] [Individual]
• One of the above made their comment with the caveat ‘we appreciate these are partial impact assessments’.
• Another participant suggested ‘as the impact of the regulations depends very heavily on the guidance that is created for the conservancy staff to follow I believe it is not possible to perform a BRIA until this is made available’. [Individual]
• Confor also suggested they had ‘identified a number of concerns in their response which would warrant a review of the BRIA’. The key concerns within the body of their response are included in the summary below.

Other comments on potential business impacts made elsewhere in responses

8.5 Above and beyond the specific question on impact assessments, in other parts of their responses some participants described potential commercial impacts or opportunities arising from the proposals put forward. Key themes included bureaucracy, impact on practice and additional costs. These are included in the relevant chapter and are also summarised below, for ease of review:

• Calls for an amendment to the 5m3 exemption ‘to removal by ownership AND within block (or a set distance)’, on the basis that some woodlands may not have either a forest plan or forest design plan in place.
• Fears that the removal of exemptions for windblown trees will create significant delays for businesses that do not have a forest plan or forest design plan in place.
• Also, suggestions that following a windblow event, the landowner should have the discretion not to restock the site if they deem it to have an unacceptable risk rating or if the costs are prohibitive.
• Suggestions that the requirement to state the number of trees when the application is for a thinning or larger clearfell is unrealistic and that a reasonable estimate should be sufficient.
• Fears about the extent of consultation on applications required, on the basis that it can be an expensive proposal and prevent economic activity.
• Concerns that the proposal for a requirement to notify government prior to a change in ownership will be overly bureaucratic and such information should be considered commercially confidential.
• A suggestion that the proposed requirement for a land occupier (e.g. tenant) to obtain written permission from a land owner before a felling licence application adds a new, unnecessary layer of bureaucracy to the existing process.
• A view that the specific conditions to felling permissions are so wide ranging that they may increase the level of bureaucracy.
• Concerns about the adjustments in relation to Small Trees, on the basis these restrict the ability of forest managers to manage their resource by reducing the period in which work can be carried out. Also, a suggestion that this change imposes an additional time-consuming and costly administration burden.
• Fears that the removal of the exemption for small woodlands 0.1-0.5 ha where the canopy comprises over 50% of native broadleaves will have unintended and unsustainable consequences for owners, such as the cost and times linked to survey, mapping, administration and inspection.
• Scottish and Southern Electricity Networks and SSE Generation Ltd highlighted some specific issues that have the potential to affect their businesses; these were signposted to the Scottish Government separately.
• A call for harmony between the Remedial Notices that can be applied under the new Permissions, enforcement tools available to Woodland Officers and those enforcement powers available to SEPA Officers.
• Concern that the requirements on restocking are too specific and will force private sector foresters to use new methods, such as those used in public sector forestry that may not meet the standards required on private land.
• A suggestion that the ‘minimum’ information requirement should not be the same for every application, with proportionate guidance depending on the application.

Responses to the question on the Strategic Environment Assessment (SEA)

8.6 Four participants commented specifically on the SEA. Two highlighted aspects that they agreed with; two identified gaps in the SEA or issues that they would like to see covered in more detail:

Agreement with the SEA

8.7 Both organisations that expressed agreement with the SEA operate in the fisheries sector. They welcomed Table 2, which summarises common issues associated with soil and water. One of these respondents also said they supported the comment within the SEA that ‘a specific question on peat and peatland restoration should be included to address issues around restocking in areas of deep peat’ [Galloway Fisheries Trust].

Disagreement with the SEA

8.8 The two participants who expressed disagreement with the impact assessments with reference to the SEA highlighted several issues for the Scottish Government to consider, as follows:

• ‘We believe that the Strategic Environmental Assessment has not fully considered the full environmental implications of the proposals, particularly regarding the potential impact of felling and restocking on biodiversity and specific habitats such as deadwood. The potential for cumulative impacts requires further consideration, particularly as the EIA process is sometimes lightly applied to current applications for felling and afforestation’ [RSPB Scotland].
• One individual’s concerns about the SEA were far-reaching. They urged for greater consideration of a range of issues, including:
  • Deadwood habitats and species.
  • Scotland’s native wildlife and woodlands.
  • Regulatory connections between the proposed felling consenting regime and existing other environmental consents, for example related to designated wildlife sites (e.g. SPA, SAC, NNR & SSSI), designed historic landscapes and scheduled ancient monuments (SNH & HES), SEPA engineering water & pollution consents.
  • Environmental Impact Assessment under forestry regime (deforestation) as well as EIA related to development under the planning regime.
  • The role, expertise, training and capacity of regulatory staff within these regimes to comment on forestry proposals as statutory consultees, as well as the expertise, capacity and training of forestry regulatory staff to issue and enforce felling consents.
  • Potential legal and regulatory loopholes and problems, the current approach of Environmental Impact Assessment for deforestation, including assessment cumulative impacts, and consider the new proposals.

8.9 Scottish Environment Protection Agency did not provide a yes/no answer to the question on agreement with the impact assessments, but made several comments about environmental considerations. The detailed nature of the response is beyond the scope of this high-level report and has been signposted to the Scottish Government for review.

Other comments on potential environmental impacts made elsewhere in responses

8.10 Above and beyond the specific question on impact assessments, some participants referenced environmental considerations in responses to other questions in the consultation document. These have been covered in the report under the relevant chapter, but are summarised under key themes, for ease of review:

Environment

• A fear that any costs associated with the felling consents regime may be counterproductive in leading to insufficient levels of applications, more environmental loss and damage and poor forestry practice, and increased need to search for non-compliance.
• Concern that the switch from felling and the regulation of it, related to 'wilful damage of a growing tree' to consent for 'killing' a tree with exemptions for dead trees, will be subject to new case law and ‘likely to have unintended loopholes, regulatory problems and environmental damage’.
• A view that the proposal to consult on thinning applications will affect woodland management and should therefore ‘be encouraged, not over‐controlled’.
• A call for incentives or requirements on forestry operators to ensure that areas which have been cleared of natural conifer regeneration in riparian zones are returned to appropriate native tree species. ‘Without the establishment of native trees within a riparian buffer strip, the full ecological benefits of nutrient input, bank stabilisation, shading and creation of cover for fish provided by riparian woodland will not be realised’.

Climate

• Concerns that the importance of peaty soils is missed throughout this document and is also absent in the parent Regulation of Felling and Restocking Consultation document.

Biodiversity

• A view that tree felling should take into consideration the ecological effects of removal from the environment. Any change to a forested area should be considered in line with local and national biodiversity plans, as well as knowledge of sensitive species or ecosystems local to planned felling.
• Calls to do more to support or encourage coppicing on the basis of it being a useful technique for smaller scale woodland management and small diameter timber production and can be of benefit for biodiversity.

Ecology

• An observation that ‘ecological protection’ is listed as a possible condition on a restocking notice but not specifically referenced in relation to felling permissions or felling directions.

Ancient Trees

• Greater consideration of the need to remove trees to assist habitat restoration when making decisions related to restocking or compensatory planting.
• A call to use tools, such as the existing Ancient Woodland Inventory, for identifying native ancient woodland where there should be no exemptions.
• An appeal for information on ancient woodland to be more robust and accessible, for example through addition of clear definitions as to what the various terms mean, i.e. ancient woodland, ancient semi-natural woodland, and plantations on ancient woodland sites (PAWS).

Habitat

• A call for recognition that solitary ancient trees should be maximally protected, as even single specimens create a unique habitat for invertebrates, fungi, plant life, etc.
• A suggestion there should be an ecological consultation on the value of dead trees for wildlife.
• A call for greater protection of hedgerows because of their value for wildlife/invertebrates.
• Concerns that the removal of the exemption in respect of small native woodlands is potentially detrimental to the management of those woodlands and may be counterproductive.
• Suggestion that an improved definition of public open space is required as these may incorporate a number of small blocks of woodland and exemption would allow removal of such areas with an overall loss of woodland cover.
• A suggestion that the practicality of monitoring and investigating breaches associated with species of a small mature size may be difficult and a major task for Scottish Forestry.
• Calls for small remnants of native pinewoods to be protected from felling, by excluding such areas from the exemption.