Commentary on Sections Part 4 - Forestry Section 41 – Appeals and Compensation
236.Section 41 inserts seven new sections into the Forestry Act 1967 setting out rights to bring an appeal and rights to claim compensation following the giving of notices under sections 24C(3), 24D(2) and 24E(2).
237.New sections 26A and 26B set out who may bring an appeal against a notice given under section 24C(3), 24D(2) and 24E(2), and specify the grounds on which those appeals may be brought. Section 26A(2) sets out the grounds under which an appeal may be brought against a section 24C(3) notice, and section 26A(3) sets out the ground under which an appeal may be brought against a section 24D(2) notice. Section 26B(2) sets out the grounds under which an appeal may be brought against a section 24E(2) notice.
238.An appeal under section 26A or 26B must be brought by serving a notice on the Welsh Ministers requesting the matter be referred to a Committee appointed in accordance with section 27 of the Forestry Act 1967.
239.New section 26C makes further provisions in relation to appeals. Amongst other things, it allows the Welsh Ministers to set out in regulations the prescribed manner and prescribed period for bringing appeals against notices given under section 24C(3), 24D(2) and 24E(2).
240.As a general rule, notices given under sections 24C(3), 24D(2) and 24E(2) do not take effect until after a person has been given an opportunity to bring an appeal or (in circumstances where an appeal has been brought) until the appeal has been concluded. However, a notice given under those sections can take effect immediately to the extent that (i) the notice suspends a felling licence, or (ii) the notice amends or revokes a felling licence, and NRW considers that the action is necessary in order to respond to an imminent and serious risk of harm to the environmental features described in section 26C(3)(a).
241.Section 41 also inserts new sections 26D, 26E and 26F into the Forestry Act 1967 to provide an entitlement to compensation in certain circumstances following the receipt of a notice given under section 24C(3), 24D(2) or 24E(2). These new sections are to be read alongside the provisions in new section 26G.
242.Sections 26D, 26E and 26F specify who can make a claim for compensation where a notice has been given under section 24C(3), 24D(2) or 24E(2).
243.Section 26D provides an entitlement to compensation where a notice has been given under section 24C(3). An entitlement to compensation arises where the notice has either been cancelled by the Welsh Ministers following an appeal or (if a notice is one that suspends a licence), where the Welsh Ministers have directed NRW to end the suspension.
244.If a section 24C(3) notice is cancelled following an appeal, compensation is payable for any expenses reasonably incurred in connection with the giving of the notice, and for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the giving of the notice.
245.If the Welsh Ministers have directed NRW to end a suspension, compensation is payable for any expenses reasonably incurred in connection with the suspension, and for any depreciation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the suspension.
246.Section 26E provides an entitlement to compensation where a notice has been given under section 24D(2). Notices under section 24D(2) are only able to require a person to take steps (and are not able to vary, amend, suspend or revoke licences), so compensation rights under section 26E are more limited. The entitlement arises if a section 24D(2) notice has been cancelled by the Welsh Ministers following an appeal, and compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.
247.Section 26F provides an entitlement to compensation where a notice has been given under section 24E(2). Notices given under section 24E(2) are able to amend, suspend or revoke licences where there has been no breach of a licence condition (if the requirements set out in section 24E have been met), so the compensation rights under section 26F are broader.
248.There is an automatic right to compensation for any deprecation in the value of the trees that is attributable to deterioration in the quality of the timber arising as a result of the giving of a notice under section 26E(2), regardless of whether an appeal has been brought. This is similar to the compensation rights that arise under section 10 and 11 of the Forestry 1967 Act where an application for a felling licence is refused.
249.An entitlement to compensation also arises under section 26F where a notice given under section 24E(2) has either been cancelled by the Welsh Ministers following an appeal or (if a notice is one that suspends a licence), where the Welsh Ministers have directed NRW to end the suspension.
250.If a section 24E(2) notice is cancelled following an appeal, compensation is payable for any expenses reasonably incurred in connection with the giving of the notice.
251.If the Welsh Ministers have directed NRW to end a suspension made by a section 24E(2) notice, compensation is payable for any expenses reasonably incurred in connection with the suspension.
252.New Section 26G makes further provision in relation to compensation claims. Amongst other things, it allows the Welsh Ministers to set out in regulations the prescribed manner and prescribed period for claiming compensation and provides further details about claiming compensation for deterioration in the quality of timber.