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The current focus on environmental issues and the special tax status of woodland have combined to create a surge in commercial forestry and woodland markets over the last 18 months which shows no sign of slowing. Private buyers are also paying high prices for amenity woodland and land to plant trees for environmental ends. Whether you are buying existing woodland or looking to buy suitable agricultural land for woodland creation, what should a buyer have in mind to ensure a successful purchase?

Approvals


With any purchase of land it is important to consider if there are any statutory limitations which might hinder your plans. Don’t just assume that your proposed woodland creation scheme can be achieved without any form of approval.

Section 55(2)(e) Town and Country Planning Act 1990 states that “use of any land for the purposes of agriculture or forestry (including afforestation)” is not development requiring planning permission. However an Environmental Impact Assessment (EIA) may be required. Generally, in England, a planting scheme under 0.5ha will not require an EIA, whereas larger schemes may need to submit an EIA depending on a number of factors including the sensitivity of land on which planting is contemplated. Any site over 2ha will necessitate an EIA being submitted to the Forestry Commission. It is important to understand whether there are any existing habitats or wildlife which might be affected by the planting of trees, for example wildflower meadows or ground nesting skylarks. Site of special scientific interest status can severely restrict what you can do with a site and there are different rules for areas of outstanding natural beauty. Natural Resources Wales administer similar regulations in Wales and generally large-scale projects will need to submit an EIA. A buyer will want to know that their proposed scheme is acceptable prior to exchange of contracts.

Access and tracks


As with all purchases, access to the land being bought will be a key factor. Not only will you need to ensure continuous access to a public highway you may also need to be sure that this access will practically allow access for timber lorries, either now or in future. The camber, width and condition of any access track will be fundamental to the successful operation of any timber business and will be salient for any significant woodland management. Suitable visibility splays at the junction with the public highway can also be important.

Any right of access which has been acquired through long use (prescription) will only have acquired a right of way for the existing use; where the land is currently in use for agriculture there may be no prescriptive right for commercial forestry use. Is appropriate insurance available? Could the owner of a track be approached and a deed of easement for forestry use be purchased? What will be required or appropriate may also be dictated by whether a lender is on board or will be required in the future.

How will tracks or lay down areas for timber be maintained? Have they been maintained using rock quarried from the land being purchased or from elsewhere, who has undertaken such maintenance and who owns the stone used? The recent Wynnstay case Wynne-Finch & Others v Natural Resources Body for Wales [2020] was brought by the mineral owners against the surface owners, who had used stone quarried from the site for tracks and other forestry operations on the surface. Whilst the case found in favour of the surface owner, it shows this is a live issue and third party interests must always be considered.

Grant schemes


There are numerous grant schemes available both for the creation of new woodland and the maintenance of existing woodlands. Each comes with its own rules and requirements and professional advice should be sought on any scheme. Any purchaser will want to understand what schemes may be available to them (and the interaction of the different schemes). As noted in our Woodland – conditional exemption and environmental schemes article, being part of one scheme may disqualify you from benefitting from other schemes in future.

Where a property is subject to an existing scheme there may be ongoing obligations with regards to restocking and maintenance which need to be understood by a buyer. There may even be subsisting breaches of those obligations, raising the possibility of financial penalties (including the repayment of any grants received) that could fall on the buyer. Felling licences also usually come with restocking obligations which bind buyers. The purchase contract should therefore deal with these issues and provide mutual indemnities confirming compliance by the existing owner up to completion and continuing performance by the new owner. On any woodland purchase, it is important that the necessary dealings with whichever body monitors compliance with the grant conditions should not only be spelled out in the contract, but actually put into practice. All sorts of issues can arise from those involved forgetting to do what they were meant to do.

Owning woodland


Commercial operators will be familiar with the issues, but private buyers new to woodland ownership have to become accustomed to a new range of risks that come with this type of land. Mature woodland attracts trespassers, from dog walkers to BMX riders. Landowners owe a duty of care to those uninvited guests under the Occupiers Liability Act 1984. An additional duty exists under the criminal law which is particularly relevant to trees, especially those overhanging roads or footpaths. The Health & Safety at Work Act 1974 requires 'reasonable safety' to be achieved by employers who control property as part of their business. This duty to ensure that individuals are not exposed to risks to their health and safety applies not just to employees, but also to those affected by operations on a property, including walkers. There is, sadly, no shortage of cases of serious injury caused by falling branches. Annual tree safety audits, appropriate remedial action and public liability insurance cover are essential.

Conclusion


Buying existing woodland or land for woodland creation is not the same as buying land for agriculture – everything must be looked at through a different lens. Early input from professionals who specialise in this area is invaluable.

Read the Rural Estates Newsletter Spring 2022 in full here.

If you require further information about anything covered in this briefing, please contact Thomas Kirkman or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2022

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