Forestry Act 2014

32.

Compensation for refusal of felling licence, etc

32. (1) The Minister shall, as soon as practicable after the commencement of this section, make regulations providing for the payment by the Minister of compensation to a person in a case where an application by the person for a licence—

(a) to fell or otherwise remove trees,

(b) to undertake forest road works, or

(c) to undertake afforestation,

is refused, but only if that refusal has been the subject of appeal and that refusal has been upheld on the appeal, or appeals, being finally disposed of.

(2) Regulations under this section shall not be made otherwise than with the consent of the Minister for Public Expenditure and Reform.

(3) Without prejudice to the subsequent provisions of this section, a payment of compensation under regulations under this section shall not be made otherwise than on foot of an application in that behalf made to the Minister, being an application that is—

(a) in the form directed by the Minister to be used for the time being for this purpose, and

(b) made—

(i) not earlier than before such time or the happening of such event as is specified in the regulations, nor

(ii) later than such time or the happening of such event as is so specified,

and, as respects such an application, the regulations may provide that at the time of the making of it or at any subsequent time (and before the determination of the application) the applicant shall furnish to the Minister such documents or information, or such further documents or information, as the Minister may require.

(4) Without prejudice to subsections (9) to (11) and (14), regulations under this section may contain a provision that no compensation shall be payable under the regulations where the reason for the refusal to grant the licence concerned falls within any description of reason specified in that provision for the purpose.

(5) No description of reason shall be specified in such a provision for that purpose unless the description of reason either has, as its basis, a basis set out in subsection (6) or complies with the requirement of subsection (8) (or both has the foregoing basis and complies with that requirement).

(6) The basis referred to in subsection (5) is one that is reasonably related to any of the following:

(a) the protection of the environment;

(b) the ensuring of good forestry practice;

(c) the preservation of amenities;

(d) public health or safety;

(e) protection from flooding;

(f) preservation of water quality.

(7) In subsection (6)(b)“good forestry practice” means forestry practice that respects the principle that the diverse activities constituting forestry (including afforestation) must be planned and implemented in a manner that prevents, limits, abates or reduces significant adverse impacts or risks thereof on—

(a) the environment (and, in particular, on significant ecosystems and important habitats for flora or fauna), and

(b) the character of the landscape.

(8) The requirement referred to in subsection (5) is that the description of reason concerned is expressed in terms that are identical or analogous to the terms in which a reason appearing in any paragraph of the Fourth Schedule to the Planning and Development Act 2000 is expressed in that Schedule.

(9) Regulations under this section shall contain a provision that no compensation shall be payable under the regulations where the reason for the refusal to grant the licence concerned was that—

(a) the application for the licence was incomplete in any material particular, or

(b) any environmental impact statement, natura impact statement or other information submitted for the purposes of the application for the licence was, in the opinion of the Minister, inadequate.

(10) Subject to any reasonable qualification or modification of the following provisions of this subsection that the Minister considers should be provided for in the regulations to meet particular classes of case (and without prejudice to the provisions of the regulations referred to in subsections (11) and (12)), regulations under this section shall contain the following provisions with respect to determining the amount of compensation payable under the regulations—

(a) in the case of a refusal to grant a licence to fell or otherwise remove trees or to undertake forest road works, compensation shall be calculated on the basis of the depreciation in the value of the trees that is attributable to the deterioration in the quality of the timber as a consequence of the refusal,

(b) in the case of a refusal to grant a licence to undertake afforestation, compensation shall be calculated on the basis of the reduction in value between the antecedent and subsequent values of the land, where—

(i) the antecedent value of the land is the amount which the land, if sold in the open market by a willing seller immediately prior to the relevant decision (assuming that the relevant application had not been made), might have been expected to realise, and

(ii) the subsequent value of the land is the amount which the land, if sold in the open market by a willing seller immediately after that decision, might be expected to realise.

(11) Regulations under this section shall contain a provision—

(a) in relation to a case referred to in subsection (10)(a), that no compensation shall be payable in respect of any deterioration in the quality of the timber that—

(i) took place more than 10 years before the date of the application for compensation, or

(ii) is due to any unforeseen event of a kind specified in the regulations, or neglect of the trees, occurring subsequent to the refusal of the application for the licence concerned,

(b) that not more than one application for compensation under the regulations may be made in respect of the same parcel of land (irrespective of the type of licence under this Act applied for) in any period of 40 years.

(12) Regulations under this section shall contain such provisions, by way of enabling abatement of sums or otherwise, as appear to the Minister to be necessary or expedient to prevent the result specified in subsection (13) where, under any scheme or administrative arrangement, the payment of public moneys to the applicant is provided in respect of an activity to which this Act relates.

(13) The result mentioned in subsection (12) is that in consequence of—

(a) the applicant’s being refused the grant of the licence concerned, and

(b) the regulations’ operation (if the regulations did not contain the foregoing provisions and the applicant were to be paid compensation under the regulations in respect of that refusal),

the applicant would be in receipt of an amount of public moneys that is greater than the amount of such moneys that the applicant would be in receipt of if his or her application for the licence concerned had been granted.

(14) Regulations under this section—

(a) may provide that if the amount of compensation claimed by the applicant, or the amount of compensation determined under the regulations on foot of his or her application, (in each case after the abatement (if any) required to be made pursuant to the provision of the regulations referred to in subsection (12)), is less than such minimum amount as is specified in the regulations for the purpose, no payment of compensation in respect of that application shall be made,

(b) may contain such incidental, consequential or supplemental provisions as the Minister considers necessary or expedient (including provision for the referral to arbitration of the determination of the amount of any compensation payable or alleged to be payable).