Tim Gordon-Roberts, Scottish Forestry
You must apply for Felling Permission if you wish to fell a tree, unless the felling is exempt.
Felling without a valid Felling Permission (where exemptions or Directions do not apply) is an offence and may result in prosecution, a fine of up to £5000 per tree and a criminal record for anyone involved.
These headline statements are to grab your attention. The word ‘must’ is used to make it clear that you have to do something before felling a tree, and the terms ‘offence’ and ‘prosecution’ highlight that the consequences of not doing it can be pretty severe.
Whilst there are a number of things you have to do before felling a tree, from getting together the right people with the right qualifications and the right kit through to wildlife checks and neighbour notifications, for the purposes of this article I will concentrate on what you have to do to legally comply with the Felling Regulations in Scotland.
Firstly, it’s worth noting that there are three forms of Felling Permission that can be obtained from Scottish Forestry.
The first is a stand-alone Felling Permission Application (FPA). This tends to be for smaller-scale or one-off jobs. It is usually issued for a year or two and comes with a condition to restock and maintain the felled area until it is fully established as woodland again. FPAs are usually processed within 12 weeks of receiving a valid application.
The second is through an approved Long Term Forest Plan. For woodlands over 100ha, financial support is available to help prepare these plans through the Forestry Grant Scheme. This involves an in-depth scoping exercise to identify and work through all the constraints and opportunities relating to the forest in order to restructure it to meet the requirements of the UK Forestry Standard (UKFS). The process should take 6 months to a year to complete, and provides Felling Permission and conditions restocking for the first 10 years of the plan.
Thirdly, we have Management Plans for woodlands under 100ha or Woodlands in and Around Town (WIAT) Urban Woodland Management Plans. Of these, only WIAT plans are grant funded. Management Plans are a lighter touch than Long Term Forest Plans and only provide Felling Permission for thinning operations for up to 10 years, as long as suitable detail has been provided on the thinning controls that will be put in place. Any clear felling proposed would require an FPA.
As all plans can expire, make sure you check the approval and expiry dates before you start work, so that you are confident that the Felling Permission is valid and you can complete your work within the approval period.
Felling Permission is not required if the felling falls into one of the exemptions detailed in The Forestry (Exemptions) (Scotland) Regulations 2019. There are quite a few and some of them are complex, so I will just share with you some of the most common exemptions that you are likely to come across.
Burden of proof
Before we look at the exemptions, though, it is important to be aware that case law has shown that legally, the person who claims the exemption (the owner) must be able to prove that the exemption which they claim applies actually does apply. The best way to do this is by using surveys, maps and photographs.
Making sure the person asking you to do the work is actually the owner of the tree(s) is also imperative – whether that is by asking them for their title deed or checking for yourself on the Registers of Scotland website.
Is the felling exempt?
The Forestry Exemptions relate to certain types of trees, certain places and certain categories of people.
Certain types of trees
The most common exemptions here relate to size, volume and safety.
Size: Trees below 10cm diameter over bark, at 1.3m above ground level (diameter at breast height (dbh)) do not require Felling Permission. As a ready reckoner, this is about the size of a drinks coaster. However, you should be careful if you are asked to clear a significant area of trees even if they are below 10cm dbh as the Forestry Environmental Impact Assessment Regulations may come into play for deforestation.
Volume: You can fell up to 5 cubic metres of timber in a calendar quarter, across all the land under that ownership, unless the trees are in a small native woodland or a Caledonian Pinewood Inventory site – as here the 5 cubic metre exemption does not apply and all felling will require Felling Permission. Owners and everyone involved should be aware of the status of their land and keep accurate records of what has been felled and when it was felled.
Safety: The FLM (Forestry and Land Management) Act made significant changes on the safety front: now nuisance trees and wind blow are no longer exempt and so Felling Permission is required in these situations. However, trees can be felled without Felling Permission if it is for the prevention of immediate danger to persons or property. What this means in practice is that if you turn up on site and it is clear to you that you must act immediately because the trees you are assessing pose a very real risk of sudden failure, and that failure will be dangerous to people or cause damage to property, then you should act to ultimately remove the danger. You do not need Felling Permission as any delay in dealing with the dangerous tree(s) would further increase the risk.
This doesn’t shift the requirement to demonstrate that the exemption applies. So, after you have made sure that people are moved away and kept out of danger, you should quickly take photos of what causes you concern. Take close-up photographs (if it is safe to do so) but most importantly take pictures of the tree in context to show the danger that it poses to people or property. A simple diary entry describing your findings, decisions and actions then tells us the full story if we are required to investigate.
Things to look out for here are as you would expect, including: trees leaning heavily towards people or property, root plate movement, extensive rot and so on.
Regular surveying and good record keeping will minimise the need to use this exemption, allowing plenty of time to take an informed and planned approach to any tree works.
The main exemption here relates to trees in gardens, orchards, churchyards and public open spaces.
For gardens, we are looking for an enclosed area that relates to a residential property and evidence that it is clearly used as a garden, so features like mowed lawns, flower beds, paths, garden buildings, furniture and so on. When a property is in a woodland setting, without a distinct boundary, there will be a point where the garden changes character and becomes woodland and then Felling Permission is required.
The situation is similar for public open spaces which are planned, designed landscapes like public parks, where the trees have been formally planted. Here too there will be regular instances where the open space changes to woodland and Felling Permission is required. The Regulations state that this is the case for stands of trees with an area of 0.1ha or greater and with more than 20% canopy cover.
Certain categories of people
This exemption includes, for example, tree felling by or at the request of a statutory undertaker on land occupied by them and for the purpose of carrying out their functions. This can include rail, road, an electricity operator, Scottish Water and so on.
Advice and support
If you need any further details concerning the exemptions or how to apply for Felling Permission then have a look at our free booklet, Felling Permission – Application Guidance, on our website: https://forestry.gov.scot/support-regulations/felling-permissions.
In all cases, if there is the slightest bit of doubt, simply get in touch with your local Conservancy Office for free and impartial advice on whether Felling Permission is required or not.
Tim Gordon-Roberts works for Scottish Forestry in its Grampian Office.
This article was taken from Issue 195 Winter 2021 of the ARB Magazine, which is available to view free to members by simply logging in to the website and viewing your profile area.