Legal right to modify the Ballyoukan Road to accommodate timber transport: EIR release

Information requested

The purpose of this FOI is to confirm the legal right of Scottish Woodland/7 Owners to modify the Ballyoukan Road to accommodate timber transport for harvesting of Ballyoukan Forest. As SF granted a felling license in 2014 to Scottish Woodland/7 Owners which included proposed modification of Ballyoukan Road then this scenario has already occurred.

a) Do Scottish Woodland/7 Owners have the legal right to modify the Ballyoukan Road?

b) Please provide evidence and legal documentation to confirm that Scottish Woodland/7 Owners have the legal right to modify the Ballyoukan Road.

c) Please give details of the due diligence applied by SF when an application requires modifications to a road (not a forest track or Local Authority)

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception under the EIRs applies to some of the information you have requested.

The exception which applies is Regulation 10(4)(a), information not held. This exception applies because some of the information requested was not held by Scottish Forestry at the time of your request.

a) Do Scottish Woodland/7 Owners have the legal right to modify the Ballyoukan Road?

b) Please provide evidence and legal documentation to confirm that Scottish Woodland/7 Owners have the legal right to modify the Ballyoukan Road.

In making a felling permission application it is the responsibility of the applicant(s) to ensure they have the appropriate rights to undertake the work and any associated timber transport. Our felling permission guidance notes to applicants that (page 16):

“You should satisfy yourself that your application considers any relevant legislation and does not contravene legal or best practice requirements.”

Our felling guidance also notes (section 6.3, page 33) that it is an offence under the Forestry and Land Management (Scotland) Act 2018 “to provide false or misleading information on an application for Felling Permission and any associated information relating to it, including details of who owns the land.”

Scottish Forestry deals with over 150 felling permissions every year, not including forest plans, and does not undertake individual checks on all the various legal rights applicants can have to the land. In this case, we have been advised verbally by Scottish Woodlands (acting for 6 of the owners) that they have a legal right to modify the road for forestry purposes. Scottish Woodlands are aware that it is an offence to provide misleading information.

If we had reason to suspect the information we had received was not correct, or received evidence to that effect, then we would undertake further investigations.

The information you have requested is therefore not currently held by Scottish Forestry. The legal documents relating to the seven land holdings are publicly available from the Registers of Scotland, either on the Land Register of Scotland or the General Register of Sasines.

c) Please give details of the due diligence applied by SF when an application requires modifications to a road (not a forest track or Local Authority)

An Environmental Impact Assessment screening assessment may come into play in certain circumstances, such as where a new road is being built or an existing road is being widened over a significant length.

Further details of forestry EIAs can be found here: Scottish Forestry - Environmental Impact Assessments.

No decision has yet been taken in this case as to whether an EIA screening assessment will be required for any necessary road works.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.