FORESTRY BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by Department of Agriculture and Rural Development in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Primary Forestry legislation is contained in the Forestry Act (NI) 1953. The Act is antiquated and reflects a past priority to establish a strategic reserve of timber and to maintain a timber supply. Modern forestry as reflected in the Forestry Strategy- “ Northern Ireland - A Strategy for Sustainability and Growth” recognises that forestry is now a complex and multi-functional enterprise, with increasing economic, social and environmental purposes and benefits. It also recognises that the modern Forest Service must manage these diverse and sometimes competing functions in an integrated and balanced way, and strive to maximise the benefit of the public estate.
4. The Bill will carry forward several key existing provisions of the Forestry Act (NI) 1953 which support practical, everyday Forest Service business, but in a wider context. It will also introduce some new powers. As well as the traditional function of the development of afforestation, “forestry” will also include the management of forestry land so as to contribute to the protection of the environment, biodiversity and the mitigation of or adaption to climate change. It will also promote and encourage the enjoyment and recreational use of that land by the public and promote the social benefits of forests. The Department will also be able to use or develop forestry land for a purpose other than forestry, which will allow the Department to develop its land to obtain better value from the public estate – for example to allow for the creation of wind farms or the development of tourist facilities.

CONSULTATION

5. The policy proposals underpinning the Bill were developed in two major consultations of the industry and key stakeholders between June 2002 and December 2004. This culminated in “A Strategy for Sustainability and Growth” (March 2006). The consultation process highlighted broad support for an update of forestry legislation to provide the Department with more powers to develop more diverse opportunities.
6. Forest Service also consulted with industry and stakeholders in June 2008 and provided them with an update on proposed provisions of the Bill.

OPTIONS CONSIDERED

7. The main options considered were:-
   
   Option 1 –Amend the Forestry Act (NI) 1953
   Option 2- Replace the Forestry Act (NI) 1953 with a new Forestry Act
8. The Forest Service does not currently have all the powers necessary for its increasingly diverse responsibilities, be they economic, social or environmental. Option 1 would leave the Forest Service an unwieldy Act, with many amendments over different pieces of legislation. The Departmental Solicitor’s Office and the Office of the Legislative Counsel both agreed that a revision was not enough, and that a new Act would be required.

OVERVIEW

9. The Bill contains 39 clauses and 2 schedules which replace the Forestry Act ( Northern Ireland) 1953.

COMMENTARY ON CLAUSES

Part 1 – Functions of the Department

Clause 1- General duty of the Department

This clause places the Department’s duty to promote forestry on a wider footing than the traditional primary role of developing afforestation, the supply of timber, and the maintenance of reserves of growing trees. This had been the emphasis in the 1953 Act. Clause 1 recognises that modern forestry places equal importance on protection of the environment, biodiversity, climate change and social and recreational use.

Clause 2 - Principal powers of the Department

This clause covers a wide spectrum of the main powers of the Department to engage in and support the afforestation of land, forestry management and woodland industries.

Clause 3 - Provision of facilities on forestry land

Clause 3 empowers the Department to provide a wide range of facilities to improve the amenity of forestry land. The Department may wish to charge for certain facilities, such as the use of an interpretative centre, or car-parking. However, this can only be done with the approval of the Department of Finance and Personnel.

Clause 4 - Use or development of forestry land

Clause 4 will provide a power for the Department to develop its land to obtain better value from the public estate – for example the use of wind farms or the development of tourist facilities on forestry land. On the surface, this is a wide-sweeping power, but it has a safeguard in that the Department in exercising this power must have due regard to its general duties to promote afforestation and sustainable forestry as described in clause 1.

The Department is already committed through the UK Forestry Standard and the UK Woodland Assurance Standard to credible standards of sustainable forest management. Furthermore, any development will have to be in line with the Environmental Impact Assessment (Forestry) Regulations (NI) 2006.

Clause 5 - Compulsory acquisition of land

This clause will give the Department powers to acquire land compulsorily to provide or improve access - a feature of Forestry legislation in G.B. and in the South. Acquisition may be temporary or permanent and includes an easement or right over land. This will be a useful power for the Department, particularly where timber ready for harvesting is landlocked and no agreement on access to it is possible. The Department will be required to follow the process for vesting in the Local Government Act (NI) 1972, including the serving of a notice of its intention to make a vesting order, the allowing of representation, provision of compensation, and right of appeal to the Lands Tribunal.

Clause 6 – Inquiries, information, etc

There is provision for the Department to carry on inquiries and collect and disseminate the results, including the preparation and publication of statistics, for the purposes of any of its functions under the Act, including the promotion of forestry. There is also a new requirement for the Department to publish and maintain a register detailing location, size and type of woodlands in Northern Ireland. The Department may exploit any intellectual property arising from these activities, including the provision of instruction and the undertaking of research under section 5 of the Agriculture Act ( Northern Ireland) 1949 and may enter into arrangements with bodies outside Northern Ireland which carry out similar activities.

An offence is created for failure to comply with a request to provide or permit the collection of any information.

Clause 7 - Incidental Powers

The powers in this clause to engage in partnerships or to participate in a body corporate are intended to support the Department in maximising opportunities for the optimum delivery of all of its functions. The Department will have a power to develop its land to obtain better value from the public estate – for example to allow for the creation of wind farms, the development of tourist facilities and participation in partnership arrangements with the private sector and other bodies, and where these are used for clause 4 purposes, subject to DFP approval. The Forestry Strategy envisages partnerships as a means to accommodate more active or high value pursuits in support of wider government objectives for sport and tourism, and enhancement of the environment.

Part 2 – Protection of Forest Trees from Damage

Clause 8 - Control of animals in forests

New clause - Control (with permission of occupier) of animals on land adjacent to forest

Clause 9 - Control of animals on land adjacent to forests

Clauses 8 and 9 are intended to protect forest trees from damage by wild animals. Clause 8 permits the occupier, in the event of damage to growing trees by deer or hares (except Irish hares), to cull such animals. The new clause, inserted after Clause 8, permits the Department to require occupiers to prevent likely or actual damage to adjacent forests by wild animals present on their land and to take action with the occupier’s permission. Clause 9, which remains dormant until such time as a draft is laid before and approved by resolution of the Assembly, gives the Department a power to require owners of land to prevent likely or actual damage to adjacent forests by wild animals present on their land; and in the event of non-compliance an authorised officer may take such action. In both Clause 9 and the new clause, “wild animals” specifically excludes birds, the Irish hare and animals protected by Schedule 5 to the Wildlife ( Northern Ireland) Order 1985.

Clause 10 - Removal or destruction of vegetation on adjoining land

Clause 10 provides for the Department, where vegetation on uncultivated land adjoining a forest poses a fire risk, to serve a notice on the occupier of the uncultivated land requesting that any vegetation within a 15 metre boundary of the forest should be removed or destroyed or other measures taken to reduce fire risk, as specified by the Department. If the occupier fails to comply within 4 months of the date of service of the notice, an authorised person may remove or destroy the vegetation or take other appropriate action to reduce fire risk.

Clause 11 - Protection for persons acting under section 8, 8A, 9 or 10

Section 7(1)(a) of the Game Preservation Act ( Northern Ireland) 1928 forbids the culling of hares in their close season and Section 7(A)(1)(a) forbids their culling on Sundays. Article 19(1) of the Wildlife ( Northern Ireland) Order 1985 prohibits the killing of fallow, sika and red deer in the close season.

Article 19(4) of the Wildlife Order forbids the taking and removing of live deer, their marking or tagging, or their transportation by aircraft, other than inside the aircraft. Woodland owners, landowners, or authorised persons will be protected against these prohibitions where they take action under clauses 8, 8A or 9 of the Forestry Bill.

Section 7B of the Game Preservation Act ( Northern Ireland) 1928 prohibits the taking, destruction or molestation of the nests or eggs of game birds. Section 7E of the Game Preservation Act prohibits the burning or destruction from 15 April to the 31 August of cover for game birds. Woodland owners, landowners, or authorised persons will be protected against these prohibitions where they remove or destroy vegetation under clause 10 of the Forestry Bill.

Articles 10(4) of the Wildlife (Northern Ireland) Order 1985prohibits the damaging, destruction, or obstruction of the shelter or protective place of any wild animal protected under Schedule 5 of the Order. Article 14 of the Wildlife Order prohibits the picking, uprooting, removal or destruction of wild plants protected under Schedule 8 of the Order. Woodland owners, landowners, or authorised persons will be protected against these prohibitions where they remove or destroy vegetation under clause 10 of the Forestry Bill.

Clause 12 – Burning of vegetation

A person wishing to burn vegetation within one and a half kilometres of a forest under different ownership is required to give to the forest owner notice of between 14 and 31 days.

An offence is created for failure to comply with this requirement.

Following receipt of the notice, a forest owner may serve a counter notice objecting to the proposed burning as it may cause damage. A person who burns vegetation in contravention of the requirement for notice or after receiving a counter notice is liable for any damage caused to the forest.

Clause 13 – Protection of forest trees, etc from pests

This provision amends the Plant Health Act ( Northern Ireland) 1967 to provide powers to make subordinate legislation to control the tree disease risk posed by wood packaging.

Part 3 - Felling of Trees

Intrinsic to the restrictions on felling of trees is a felling and regeneration licensing system to promote the sustainability of woodlands.

Clause 14 – Requirement of licence for felling

The felling restrictions have a threshold of 0.2 hectares because the Department’s Forest Service wishes to regulate forests and woodlands, rather than be a steward of individual trees, which are already covered by Tree Preservation Orders under Planning legislation. The threshold was also set because this area matches the minimum area for planting grants under existing Forest Service planting grant schemes.

There is a wide spectrum of exemptions from the requirement for a felling licence, ranging from trees in gardens, public parks, fruit trees, and small trees. An exemption at clause 14(2)(e) (ii) is for “where the aggregate cubic content of the trees which are felled by that person without a licence does not exceed 5 cubic metres in any quarter”. To get a sense of what this means, 5 cubic metres equates to one large oak tree.

An offence is created for any person who fells trees where an exemption does not apply and where no licence has been obtained.

There is provision for the Department to serve a restocking notice where it appears that an offence has been committed (clause 21 – Power of Department to require restocking after unauthorised felling).

Clause 15 – Application for felling licence

The application for felling licences will be prescribed in subordinate regulations. It is expected that the application will include: details of the location and area of trees to be felled, a map showing the woodland, special features or restrictions such as Tree Preservation Orders or ancient monuments, and the regeneration or other plans for the felled area, and any other information required by the felling management plan. The management plan must be agreed by the Department and the process may involve an inspection by a forest officer of the area to be felled.

The Department will charge a fee to cover its administration costs, and the cost of the inspection (clause 20 – Fees in connection with felling licence).

Clause 16 – Compensation on refusal of felling licence

Any compensation payable will be based on the depreciation of the value of trees attributable to deterioration in the quality of the timber as a result of the refusal of a felling licence. Disputed compensation will be dealt with by the Lands Tribunal.

Clause 17 – Operation and conditions of felling licence

A licence of not less than 5 years will be granted subject to a felling management plan for the land in question, and may specify the timing of felling, the restocking of the land and other conditions, such as maintaining the character of ancient woodland. Regulations may provide for details on the form, content and amendment etc of management plans.

Clause 18 – Deferred decision on an application for felling licence

There is provision for the Department to give notice to an applicant within 3 months, or within a further agreed time, or the application will be deemed to have been refused.

If it appears that the applicant does not have an estate in the land and could not therefore comply with conditions of a licence, the Department may postpone consideration of the application until the relevant person has become a party to the application.

Clause 19 – Appeal against decision of Department on application for felling licence

Clause 22 – Appeal against restocking notice

Clause 24 – Appeal against enforcement notice

There is provision for appeal to a person appointed by the Department under Clause 25 in respect of an applicant: (a) who has been refused a felling licence or who has been aggrieved by the conditions attached to a felling licence; (b) upon whom a restocking notice has been served who objects to the notice or to any of its requirements; or (c) to whom an enforcement notice is given in relation to a felling licence or restocking notice who considers that the conditions of either the licence or the restocking notice have been complied with (Clause 23 – Notice to require compliance with felling licence conditions or restocking notice) or that the steps required by the enforcement notice are not required for compliance with either the licence or the restocking notice.

On appeal the appointed person may confirm the decision of the Department regarding the application, the restocking notice or the enforcement notice, or direct the Department to issue the felling licence subject to certain conditions, or modify any existing conditions, or modify or withdraw a restocking notice or an enforcement notice.

An offence is created for failure to take the steps required by an enforcement notice.

Clause 25 – Appeals under this Part

An appellant under Clause 19, 22 or 24 is entitled to have an appeal determined by a person outside the civil service who has been appointed by the Department. The manner and timing of making an appeal and the procedures to be followed in connection with determining an appeal are to be prescribed by regulations.

Clause 26 – Identification of trees

There is provision for the Department to mark trees or require identification of trees in certain circumstances, such as where they must be clearly identified by an applicant for a felling licence. For clear felling only the boundary trees need to be marked.

Clause 28 – Application of this part to Crown land

Crown land is not excluded from Part 3. However, the grant of a felling licence will not extend to the imposition of conditions on any felling licence granted or to the issue of a restocking notice without the consent of the Crown Estate Commissioners, in the case of land belonging to Her Majesty or the consent of a government department in the case of land belonging to that department. The full requirements of Part 3 apply to any estate which is within Crown land and which is for the time being held otherwise than on behalf of the Crown.

Part 4 – Miscellaneous and Supplementary

Clause 30 - Public right of access to, and byelaws for, forestry land

Clause 30 bestows a statutory right for pedestrian access to all forestry land. This access will of course be limited in some instances, for example, where there are forestry operations, or environmental sensitivities. The clause allows the Department to make byelaws to restrict access, and indeed, to regulate the reasonable use of forestry land by visitors.

Clause 31 – Powers of entry

Clause 31 provides for an authorised person, on production of his authority, to enter any land for the purpose of exercising any functions of an authorised person under the Act and to enable the Department to carry out any of its functions under the Act. In addition, a person entering land may take other persons and equipment as necessary e.g. for the purpose of monitoring numbers of wild animals.

A number of controls are included:

The time of entry must be reasonable;

24 hours notice must be given to the occupier, or less if the occupier agrees;

The authorised person must produce his authority, if requested;

A lay Magistrate’s warrant is required where entry is refused or where the land is unoccupied and the circumstances are urgent e.g. in a case of extensive damage being caused to forest land by wild animals on land adjacent to the forest;

There is no authority for entry to a dwelling house;

There is a duty on those entering the land to leave it secure;

If any damage is caused compensation may be recovered from the Department.

The powers of entry are extended under Schedule 1, Compulsory Acquisition of Land, to include surveying or examining land with a view to acquiring it compulsorily, or in connection with a claim for compensation in respect of such an acquisition.

Clause 32 – Obstruction of officers, etc

Any person who intentionally obstructs an officer of the Department or an authorised person in the exercise of any function under the Act is guilty of an offence.

Clause 33 – Prosecutions under this Act

The time limit for bringing court proceedings for certain offences is 6 months beginning from the date on which sufficient evidence to justify a prosecution is known to the Department. No proceedings may be brought more than 2 years after the offence. The Courts and Tribunal Service has been advised of this provision and is content.

Clause 34 - Regulations

This clause requires that the introduction of felling licence fees will only be by affirmative resolution.

FINANCIAL EFFECTS OF THE BILL

10. The Bill does not place any duty on the Department over and above its standing obligations that will require any expenditure additional to its current budgetary allocations.

HUMAN RIGHTS ISSUES

11. The provisions of the Bill are compatible with the Convention on Human Rights.

EQUALITY IMPACT ASSESSMENT

12. Under Section 75 of the Northern Ireland Act 1998, the Department is required to have due regard to the need to promote equality of opportunity: between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; between men and woman generally; between persons with a disability and persons without; and between persons with dependants and persons without.
13. An equality impact assessment was carried out on the Forest Service’s core objectives as part of the Options for Forestry consultation of 2004. The final draft of the Bill has been screened in terms of equality and it was concluded that the function in Clause 1 “to encourage the enjoyment of that (forestry) land by the public” may have a potential differential impact on section 75 groups. An equality impact assessment was carried out of this function under the title of a “Strategy to Develop the Recreational and Social Use of Forest Service Forests”.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

14. The Bill has been assessed to determine any regulatory impact. The only provision identified which may create an impact is the felling licensing system, which will require an application process for which there may be a fee However, the prescribing of fees may only be instigated by affirmative resolution of the Assembly. In terms of uptake, we expect no more than approximately 50 applications per year. Our assessment, therefore, is that the Bill will have no significant regulatory impact. On this basis, a full assessment was not completed.

LEGISLATIVE COMPETENCE

15. The Minister of Agriculture and Rural Development had made the following statement under section 9 of the Northern Ireland Act 1998:
    
    “In my view the Forestry Bill would be within the legislative competence of the Northern Ireland Assembly.”

SECRETARY OF STATE CONSENT

16. A statement is required under section 10(3)(b) of the Northern Ireland Act 1998, on Secretary of State consent:
    
    “The Secretary of State had consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.”