Rural Law

The Forestry and Land Management (Scotland) Bill (the Bill) aims to complete the devolution of forestry in Scotland. On the 21st of June the Rural Economy and Connectivity Committee heard evidence from industry representatives about the Scottish Government’s plans to complete devolution of industry regulation, modernise and democratise forestry, and make more effective use of publicly owned land.

Here we will look at the major themes of discussion.

1 Management by the Scottish Ministers

The Bill ends the statutory authority of the Forestry Commissioners in Scotland. Their powers are transferred to a Division of the Scottish Government.

This move was met with concern by some giving evidence.

They felt that the success of the Forestry Commission has been down to its culture of co-operation and long term planning and that is has largely remained free of the pressures of political expediency.

The concern is that this culture may be lost by subsuming its role within government.

The feeling was that a good regulator must be able to engage with industry on a professional level. The role of Chief Forester was proposed, and met with interest by the Committee.

Forestry is a UK wide industry, and effective cross border arrangements are essential. It was felt the industry must not become parochial through unnecessary sub-divisions. The Bill must be part of a wider package which supports and maintains cross border arrangements.

2 Sustainable Forest Management, Sustainable Development and Forestry Strategy

The Bill places a number of duties on the Scottish Ministers. They must produce a forestry strategy. They must promote sustainable forest management. They must manage certain “other land” for sustainable development. Under certain limited circumstances, the National Forest Estate must be managed for sustainable development.

Industry representatives would like definitions of sustainable forest management and sustainable development to be written into the Bill. “Other land” is ill defined and nebulous whilst not all “forestry land” is under trees. There was widely shared concern that sustainable development may trump sustainable forest management, especially if sustainable development promises short term profitability. Some clarity is clearly needed.

The duty to prepare a forestry strategy was welcomed. A long stop date of 2 years for publication was suggested. There was consensus that any strategy must account for geographical differences across Scotland.

3 Compulsory purchase orders

The Bill increases the power of Scottish Ministers to use compulsory purchase powers (CPO) to acquire land. Land can be compulsorily acquired for both sustainable forest management and sustainable development.

Expanded powers of compulsory purchase were not welcomed. The point was made that forestry in Scotland is run on a culture of co-operation and the Forestry Commission has never used its powers of compulsory purchase. The different objectives of the Scottish Ministers are seen as a potential threat to planting. Again it was stressed that it is unclear when land can be classed as unutilised and brought under the remit of CPO, and sustainable development objectives.

4 Community bodies and delegation

The Bill enables the Scottish Ministers to delegate their functions of sustainable forest management and sustainable development to community bodies, where the body has leased land. The definition of community body is unique to the Bill and inconsistent with definitions elsewhere, such as the Land Reform (Scotland) Act 2003. The Scottish Ministers have discretion to waive elements of the definition.

It was felt the Bill gives too much flexibility to the Scottish Ministers in defining a community body. A consistent definition across legislation was preferred. Concerns were raised about the potential for forestry to be compulsorily purchased for community bodies promoting sustainable development. There was consensus about the need for clear definitions of forestry and “other land”.

Long terms leases for community bodies were welcomed. There are sharp regional variations in engagement by community bodies, but successes have been seen.

Going forward

There was shared concern that the consultation has not had significant impact on the Bill produced. There are dissenting voices in the industry, but the Forestry Commission was noted as a valued brand, approachable and co-operative. We will be keeping an eye on the progress of the Bill and advising on developments.

Graeme Leith

Graeme Leith

Managing Associate at Brodies LLP
Graeme is part of our Land Rural Business Sector and acts for landowners, funders, developers and tenants in a wide range of transactions affecting rural property.
Graeme Leith