Publication - Consultation paper

Regulation of felling and restocking: consultation

Published: 20 Aug 2018

This consultation seeks views on the proposals for regulating felling and restocking in Scotland from 1 April 2019.

36 page PDF

378.5 kB

36 page PDF

378.5 kB

Contents
Regulation of felling and restocking: consultation
Appeals

36 page PDF

378.5 kB

Appeals

Key points of our proposal

  • New two step appeals process for decisions made under the 2018 Act (felling and restocking).
  • Step 1 is an internal review, within Scottish Forestry.
  • Step 2 is an appeal to the Scottish Government Planning and Environmental Appeals Division ( DPEA), in line with planning appeals.

1967 Act licences, restocking notices, felling directions, haulage orders, and enforcement notices can all be challenged through a system of referrals to the Scottish Ministers and the use of committees charged with making recommendations. The detail of the process for each type of appeal is slightly different and is therefore confusing and difficult to follow. The proposals set out below are designed to make the appeals process more transparent and easier to follow for all parties.

The 2018 Act, in order to ensure that those affected by decisions taken by the Scottish Ministers can challenge those decisions, states that appeals may be made against decisions to:

  • refuse an application for felling permission;
  • grant an application for felling permission with conditions;
  • vary, suspend or revoke a felling permission;
  • give a felling direction (including any condition imposed on it);
  • give a restocking direction (including any condition imposed on it);
  • refuse to vary or revoke a condition imposed on felling permission;
  • refuse to vary or revoke a felling direction;
  • refuse to vary or revoke a restocking direction;
  • refuse to agree to the variation or discharge of a registered notice to comply;
  • give a remedial notice (including any condition imposed on it);
  • refuse to vary or revoke a remedial notice; or
  • refuse to agree to the variation or discharge of a registered remedial notice.

A two step system of review and appeals is proposed.

  • Step 1 will be an internal review within Scottish Forestry to be carried out by a Conservancy (‘the referral Conservancy’) that is not the Conservancy that took the original decision (‘the host Conservancy’).
  • Step 2 will be an appeal to the Planning and Environment Appeals Division ( DPEA) Reporters, making use of existing expertise in managing appeals.

The effect of requesting a review or, subsequently, an appeal will depend on what type of decision is being challenged. This will be set out in Regulations and is summarised below.

Decision Effect
Refuse permission Refusal stands until overturned.
Conditions on permission Permission suspended until challenge resolved.
Variation/ suspension/ revocation of permission Decision, and permission, stands until overturned.
Felling direction Direction is suspended until challenge resolved.
Restocking direction Direction is suspended until challenge resolved.
Refuse to vary / revoke permission conditions Refusal stands until overturned.
Refuse to vary/ revoke felling direction Refusal stands until overturned.
Refuse to vary/ revoke restocking direction Refusal stands until overturned.
Refuse to agree variation/ discharge of registered notice to comply Refusal stands until overturned.
Serving remedial notice Notice is suspended until challenge resolved.
Refuse to vary/ revoke remedial notice Refusal stands until overturned.
Refuse to agree variation/ discharge of registered remedial notice Refusal stands until overturned.

The outcome of reviews or appeals will be able to uphold, reverse or modify the original decision. At the point where the outcome is communicated, the effect of the outcome will also be communicated. For example, details of any modifications required.

Those who can request a review or launch an appeal will be those who have been notified of the decision, so for example the person who applied for a permission or the person who has been given a direction. They are referred to in this section as ‘the appellant’.

Step 1: internal review

Our proposal is that Regulations specify the following:

  • The review must be requested within 40 working days of the decision being notified, by completing a form provided by the Scottish Ministers.
  • The review may include meetings between Scottish Forestry staff and the appellant, site visits and/or external input. Any external input must only be sought after agreement between Scottish Forestry staff and the appellant on what information is being sought, and from whom.
  • The outcome of the review must be communicated to the appellant in writing.

Guidance will be available to aid in the completion of the form to request a review, and forms will be tailored to suit each decision that can be challenged.

Targets will be set for each stage of a review so that appellants are clear as to what they can expect. For example, it is planned that the host Conservancy will transfer the case file to the referral Conservancy, copying all documentation to the person who has requested the review, within 10 working days. The target for completing a review will be 20 working days from the date that the Scottish Ministers receive the request, except in exceptional circumstances (for example where access to a site has not been possible).

Step 2: Appeal to the DPEA

Our proposal is that Regulations specify the following:

  • Appeal must be requested within 40 working days of the notification of the outcome of step 1, by completing a form provided by the Scottish Ministers.
  • In certain circumstances Scottish Forestry will refer the request for a review straight to the DPEA instead of carrying out a review.
  • The outcome of the review must be communicated to the appellant in writing.

Guidance will be available to aid in the completion of the form to request an appeal, and forms will be tailored to suit each decision that can be challenged.

Our proposal is that a Reporter will be appointed in the same way as they are for Planning appeals and will have the same processes available to them.

This means that the majority of appeals will be considered and decided by the Reporter, on behalf of the Scottish Ministers. These are often referred to as ‘delegated’ appeals. A small number of appeals are 'recalled' by the Scottish Ministers who, in those cases, make the final decision themselves. In these cases the Reporter will go through the same process(es) but will make a recommendation to Ministers rather than making a decision themselves. Ministers do not have to agree with the Reporter’s recommendation. It is proposed that Scottish Forestry’s future Corporate Services Team manages the process for recalled appeals since they will not have had any involvement in the decisions being challenged.

Some appeals can be determined using only the information provided by the appellant and the original decision maker, however it is sometimes necessary to obtain some further information on a particular matter. Where this happens, the Reporter may choose to carry out one or more of these further procedures:

  • Inspection of the site
  • Further written submissions
  • Hearing session
  • Inquiry session

The Reporter will choose the most effective and efficient method for obtaining the information needed. Hearing or inquiry sessions will involve people presenting their case in person in front of the Reporter. Hearing sessions take the form of structured meetings, while inquiry sessions are normally more formal events similar in nature to cases in the law courts. The Reporter will always ensure that everyone is aware of what is expected of them.

While ultimately it is the Reporter’s role to decide whether (and, if so, what) further procedure is needed to inform the decision on an appeal, both the appellant and Scottish Forestry will be entitled to express an opinion on which procedure (or combination of procedures) they think there should be.

More information on how the Reporters operate is available on their website [5] .

Questions

13. Do you agree with the proposals?

If no:

14. Would you like to see anything removed from the proposals?

If yes: What and why?

15. Would you like to see adjustments made to the proposals?

If yes: What adjustments and why?

16. Would you like to see anything added to the proposals?

If yes: What additions and why?


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