Replacement planting after felling trees outside forests under Czech law

The Czech Nature and Landscape Protection Act also provides that if the nature protection authority does not order replacement planting under paragraph 1, a person who fells trees for construction purposes with the authority's permission must pay a levy into the budget of the municipality, which will use it to improve the environment. A person who felled trees unlawfully must pay a levy to the State Environmental Fund of the Czech Republic. The amount of the levies, the conditions for imposing them and any waiver are to be laid down by a special act.

The Nature Protection Act is thus a basis that regulates replacement planting and levies when trees growing outside forests are felled, but the regulation is not comprehensive. As regards the amount of levies, the conditions for imposing them and any waiver, the Nature Protection Act refers to a special legal regulation. The problem remains that this special act has not yet been adopted, so the reference remains a dead letter.

In practice, felling trees growing outside forests causes ecological harm in the landscape. Ecological harm is defined in Section 10 of Act No. 17/1992 Coll., on the Environment, as amended, as "the loss or weakening of the natural functions of ecosystems arising from damage to or disruption of internal links and processes as a result of human activity". Ecological harm may be remedied either by so-called substitute performance, which is precisely replacement planting under Section 9(2) of the Nature Protection Act, or by financial compensation. The latter option — financial compensation, i.e. the levy under Section 9(3) of the Nature Protection Act — requires that special statutory regulation, which has never been adopted during the entire existence of the Nature Protection Act.

Replacement planting is thus essentially the only way to compensate, even if only partly, for felling. It can only be ordered as part of the decision permitting the felling, not subsequently. Replacement planting should be proportionate. However, no special act specifies how many trees this means, and various methodologies are applied to determine its extent. In practice, the most commonly used system is that one or two new trees must be planted for each tree felled.

Replacement planting should not be seen primarily as a punishment for felling; it compensates for lawfully caused ecological harm, unlike the imposition of so-called remedial measures under Section 86(2) of the Nature Protection Act.

Replacement planting is ordered on the applicant's land, then on the land of the municipality issuing the felling permit, or possibly on the land of another owner, who must consent to it.

Levies under Section 9(3) of the Nature Protection Act are, as mentioned above, a provision of the act that has not yet been put into effect. The reason, as stated above, is that to date there is no special act laying down the amount of levies, the conditions for imposing them and any waiver. Levies for felling therefore cannot be imposed, only replacement planting. The statutory wording "the nature protection authority may order replacement planting" thus in fact means that it must order it, and in accordance with the wording of the law, i.e. proportionately.

A permit to fell trees under Section 8(1) of the Nature Protection Act, which includes an order for replacement planting, issued by the nature protection authority takes the form of an administrative decision within the meaning of Act No. 500/2004 Coll., the Code of Administrative Procedure, as amended. As such, it must comply with the law. Ordering disproportionate replacement planting may therefore be a legal defect of the decision and may lead to its annulment.

Moreover, when issuing its decision, the competent authority must bear in mind that the decision must make clear on what arguments it based its assessment of the proportionality of the replacement planting ordered. Failure to meet this requirement could breach the Code of Administrative Procedure.

Facing a felling permit or replacement planting order? Our real estate law team can help.