Food forestry is a new and different concept which can be interpreted in very different ways, often making it not immediately clear how it fits within the existing framework of laws and regulations. A characteristic of food forests is that they do not have just one function, but a combination of functions: agriculture, nature, wood production, perception and education. The emphasis may differ from one situation to another, depending on the owner's objectives. In addition, there is polyculture instead of the monocultures common in agriculture. Food forestry is therefore not easy to pigeonhole.

Food forestry and legislation

group in food forest ketelbroek

For those who want to work with a food forest, this has advantages and disadvantages. The advantage is that there is room for interpretation. The disadvantage is that civil servants who have to assess applications for food forests cannot fall back on the existing frameworks and often make a conservative, safe choice.

Whether something is 'allowed' depends first and foremost on the assessing officer's view, but also on the applicant's attitude. As an applicant, you can go for certainty (black-on-white permission from the government) or for your own risk (interpret things yourself and see where you end up).

Below is a summary of the most important laws and regulations for establishing and managing a food forest. It is impossible to describe all laws and regulations in detail, also because they may differ from one municipality to another. The following is certainly not a complete overview nor a cookbook, but a rough sketch that can help future food forest growers on their way. You can therefore not derive any rights from the following. To avoid disappointment, it is advisable to seek additional advice, tailored to your specific situation.

Furthermore, we assume that a food forest outside built-up areas is established on agricultural land or in existing multifunctional forest. In both cases, food forestry can bring ecological enrichment.

In 2021, a newer guide to regulation was published as part of the Green Deal Food Forests.

Zoning plan

The current use of the land is decisive for the establishment of a food forest. This is laid down in the zoning plan, which consists of a general section, a plan map and plan regulations. Destinations such as agricultural and natural are eligible. Dual uses (e.g. agricultural/nature) also occur and offer more space for planting a food forest than single uses.

The zoning plan may contain additional provisions not indicated on the map. These provisions may be restrictive for food forestry. One rule may be that no vegetation higher than 1.20 metres may be planted in order to preserve the openness of the landscape. Or that no trees may be felled. It is therefore important to look at the additional provisions in addition to the map.

When creating a food forest, it may be necessary to move soil for various reasons, such as to create ponds or pools or to create drier and more humid growing conditions. This may also be subject to planning regulations. In addition, protected archaeological values may be present, such as Celtic Fields or burial mounds, for which specific regulations apply.

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In many cases, food forests will fit into the zoning plan. If that is not the case, a request can be made for a change in the zoning plan. Many municipalities are enthusiastic about the concept of food forestry and will cooperate. Please note that the procedure can take a long time and that interested parties can lodge objections. A zoning change will be tested against the vision of the province and the municipality. Landscape, ecology, cultural history and suchlike will be assessed. If the existing nature is enhanced by the proposed activities, this will contribute to a positive basic attitude.

Food forestry is possible as an agricultural enterprise, as a forestry enterprise, or as a recreational enterprise, depending on the destination of the land and the exact business activities. It is important to note that the value of agricultural land is many times higher than the value of forest or nature land. A change of destination from agricultural to forest/nature therefore leads to a large depreciation that is not always economically interesting (more about this in the topic Subsidies). A change of use from nature/forest to agricultural is not always permitted and is also not always interesting because of the mandatory compensation.

Natura 2000

For Natura 2000 areas, any actions that could adversely affect the conservation status of specific natural values (habitat types and/or plant/animal species) are in principle prohibited. Food forestry on agricultural plots within/around Natura 2000 areas will generally lead to an improvement of the natural values rather than a deterioration, but it is nevertheless important to test this (or have it tested). This certainly applies to food forestry on nature conservation areas within Natura 2000 areas.

Nature Protection Act (Wnb)

Species protection

The Wnb regulates the protection of plant and animal species and, in the case of animal species, also their permanent habitats (including nests and badger setts). Although the protection of populations is paramount, the prohibitions apply to individuals.

In the case of food forestry, the WBD is especially important during construction. The construction is a spatial intervention and thus a possible change of habitat. Prior to the construction, therefore, a check must be made as to whether protected species are present whose existence may be threatened during/by the construction. Under certain conditions, on which exemption can be obtained.

Even after establishment, the WNB may be relevant to management and harvesting activities. However, because the degree of intervention (scale and intensity) in a food forest is very low, violation of the WNB is very unlikely.

Area protection of wood stands

In addition to the protection of species, the Wnb regulates the protection of the forest area. In short, what is forest must remain forest. Not all tree species/stands fall under the area protection of the Wnb. Fruit trees, Christmas tree plantations and nursery stock, for example, are excluded.

For larger interventions in the crown area (diameter larger than 1.5 x the tree height) a felling notification is mandatory and for large open spaces (larger than 50 ares) there is also a replanting obligation. The provinces supervise this and have a certain freedom to interpret the rules in their own way. The above criteria are therefore indicative. In addition, replanting may have to take place in a forestry responsible way, to be judged by the competent authority. Spontaneous growth of American yellow cress, for example, is not considered successful rejuvenation.

If the creation of a food forest means that the existing forest no longer complies with the Wnb, an exemption from the replanting obligation should be requested. And if that is granted, the lost forest will have to be compensated elsewhere (on agricultural land). In that case, it would be more logical to establish the food forest directly on agricultural land. For a food forest in an existing forest, the requirements of the WNB should be taken into account.

Heritage Act

Parks and green areas may be designated as national monuments, often as part of a historical country estate. In that case, the protection of the Heritage Act applies and an environmental permit must be obtained for any changes. Here, an assessment will be made as to whether changes in form will affect or reinforce the monumental value.

Watershed management

When creating a forest in a floodplain, an exemption from Rijkswaterstaat is required. The flow and/or storage capacity will be considered.

 

Rino Jans (Bosgroep Midden Nederland), Age Fennema (De Rentmeesters Coöperatie), Wouter van Eck (Stichting Voedselbosbouw)
November 2018

Subsidy schemes

Agricultural

Depending on the way in which food forestry is interpreted, there can be agricultural entrepreneurship with all the rights and obligations that go with it. For this to happen, food production must take place on a credible scale that transcends hobbyism.

Agricultural entrepreneurs are eligible for a supplement for certain crops. This supplement can be applied for via the compulsory annual Combined Declaration, but this takes some effort because the forms are geared to the monocultures usual in agriculture and not to a polyculture such as food forestry. The cultivated area per crop is therefore more difficult to determine and moreover, the area of ponds and hedges does not count.

Forest

If a food forest with a nature designation is established on agricultural land, a subsidy for the establishment and management can be applied for under the subsidy system for nature and landscape (SNL). The decrease in value of the land due to this change of use can be compensated. This is only possible on parcels that have been designated by the province in the Nature Management Plan, and in addition the Nature Management Plan indicates which (nature) management type must be realised. This management type will be laid down in a notarially recorded qualitative obligation on the land. The food forest will then have to comply with all subsidy obligations that apply to this specific management type. This obligation includes, on the one hand, the maintenance of the management type and, on the other hand, the opening of the area to the public free of charge for 358 days a year.

In the case of the establishment of a food forest in an existing forest, it is important to check whether a subsidy has been granted for the establishment (including compensation for the loss of land value) and/or the management, and whether there is a qualitative obligation on the land. Ongoing management subsidy can in principle be withdrawn by the applicant, but then all received subsidy has to be paid back (until the beginning of the subsidy period). However, after the end of the subsidy period, no new application has to be made. It may therefore be more convenient to apply for a current period.

Fiscal aspects

Disclaimer: Below are only general rules that may not apply in exceptional cases. It is therefore advisable to consult a tax expert for specific tax advice.

VAT

With the expiry of the Agricultural Regulation as of 1-1-2018, all agricultural and forestry companies are now subject to VAT. This means that VAT must be paid to the tax authorities on the goods and services sold. The VAT on the purchased goods and services can be deducted from this.

Forestry exemption

The tax authorities use a very broad definition of the term forestry company for income tax purposes. Trees in a yard can also fall under it. The forestry company can be part of a more comprehensive enterprise, for example an agricultural company. The profit from the forestry company is exempt from income tax, but any loss is therefore not deductible. A forestry company can opt to fall under the tax regime. This can be interesting if losses are incurred on average over a long period, for example in the start-up phase.

Real estate transfer tax

Nature is exempt from transfer tax, as is land classified under NSW. When agricultural land is sold by an agricultural company to another agricultural company, the transaction is exempt from transfer tax. The purchase of agricultural land for food forestry is therefore more favourable for an agricultural enterprise.

Inheritance tax

Estates with a Natural Heritage Act classification are exempt from inheritance tax. NSW estates do have to comply with a number of conditions, including a minimum size of 5 hectares of which at least 30% is forest/nature and compulsory opening with a minimum path density. More information on the NSW can be found on the RVO website.

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