Restocking Notices under the Forestry Act 1967 and their relationship with the planning regime

R(Smar Holdings Limited) v Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 2034 (Admin)

Key take-aways:

• It is lawful to impose a requirement on a tree restocking notice served under s17A of the Forestry Act 1967 which provides for a maintenance period of 10 years “unless immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning Act 1990 or enactments replaced by that Act”.
• The public interest in the delivery of housing and the effect of frustrating that delivery by upholding an unamended restocking notice is a relevant consideration for a decision maker on appeal.
• The Forestry Act 1967 does not place any preference between applying a restocking notice to the original land or such other land as may be agreed.
• The Forestry Act 1967 does not impose an exceptionality test on either ordering or agreeing that a restocking notice should be applied to alternative land.

Introduction

Last week, in joined proceedings, Mrs Justice Lieven DBE quashed three decisions of the Secretary of State for Environment, Food and Rural Affairs (‘SSEFRA’) to uphold restocking notices (‘RSNs’) issued by the Forestry Commission (‘FC’) under the Forestry Act 1967 (‘FA’). In each case, the claimant had appealed the RSN to a Reference Committee (‘RC’) which produced a Report that was sent to the Minister. The third claim, brought by Smar Holdings Limited (‘Smar’), raised important issues around the interrelationship between the forestry licence regime and the planning regime. The judgment can be found here.

Background

The FC is the appropriate forestry authority in relation to England. Pursuant to s.9 FA, a person who wishes to fell growing trees must obtain a licence from the FC unless a statutory exception applies. One of those exceptions is that felling is immediately required for the purpose of carrying out development authorised by planning permission (s.9(4)(d) FA).

In February 2019, without having obtained a licence or planning permission, Smar began felling trees on land which formed part of an emerging housing allocation in the Bristol City Council Local Plan Review. The FC became aware of the felling and carried out several site visits, following which it was concluded that over 53m³ of timber had been felled. As none of the statutory exceptions applied, the FC served a RSN on Smar which included a requirement that the restocked trees be maintained for 10 years.

On 5 May 2020, Smar appealed the RSN to the SSEFRA, who referred the matter to the RC. In its submissions to the RC, Smar argued that: (i) the requirements of the RSN should be varied to allow the redevelopment of part of the land for housing within the next 10 years if so required; or (ii) restocking should take place on alternative land. The intention was for the RSN to reflect the position of the exemption in s.9(4)(d) FA.

On the first issue, the RC concluded that: (i) modifying the maintenance period would undermine both the felling licence regime and the planning regime; and (ii) it was not for the RC to determine the precedence between the public interest in replacing felled trees and the public interest in housing development. As to the second, the FC advised that it would only agree to restocking on alternative land where naturally occurring events rendered the felled area unsuitable for restocking. Accordingly, the RC considered that the possibility of land becoming available for development could not justify restocking elsewhere.

In sending the documents from the RC to the Minister for Forestry, the Committee Secretary enclosed a Note marked “Official Sensitive” indicating that it would be unusual for ministers to reject the conclusions and recommendations of the RC. Smar was subsequently informed that the SSEFRA had decided to uphold the RSN based on the conclusions of the RC.

Smar’s claim proceeded on four grounds.

Ground 1

Ground 1 concerned the RC’s conclusion that the planning regime would be undermined if the appeal was allowed. Smar submitted that this was a plain error of law because amending the RSN would have no impact on the planning regime: if planning permission was not granted, then the amendment which they had proposed would not take effect.

Lieven J agreed that there was no sense in which amending the RSN would undermine the planning regime as the RSN would remain fully effective unless and until planning permission is granted: at [169]. The Judge accepted that the proposed amendment did not undermine the requirement to restock in advance of any permission or pre-empt the planning process. Accordingly, in her view, the RC’s conclusion that the planning regime would be undermined was irrational: at [170].

In considering the test in s.31(2A) of the Senior Courts Act 1981, Lieven J concluded that the reference to the planning regime was not central to the RC’s reasoning and that the test would have been satisfied if Ground 1 was the sole ground: at [171]. However, the Judge found that Ground 1 was compounded by Grounds 2 and 3: at [172].

Ground 2

Ground 2 concerned the failure of the Minister to consider the public interest in allowing the appeal. Smar argued that the Minister erred in accepting the RC’s conclusion that replacing felled trees and housing development were both in the public interest, but it was not for them to establish which of these public interests should take precedence.

Relevant to this Ground, as well as the claim by Witham Nelson Investments Limited, was the decision of the Court of Appeal in Arnold White Estates Limited v Forestry Commission [2022] EWCA Civ 1304. In Arnold White, the Court held that trees planted under a RSN cannot be felled for 10 years even if the felling is immediately required to carry out development under a planning permission because Parliament has not legislated for that eventuality. The exception in s.9(4)(d) FA does not apply in those circumstances.

In light of Arnold White, Smar had proposed an amendment which would expressly allow trees to be felled before the expiry of the 10-year period. Smar submitted that there was nothing in the statutory scheme which debarred the Minister from making that amendment and deciding which of the two regimes should take priority on the facts of a given case. The SSEFRA countered that unless full planning permission had been granted before the RSN was served, the planning consequences of the RSN were legally irrelevant considerations.

Lieven J undertook a detailed analysis of the Arnold White judgment and noted the factual differences between the two cases: at [153]-[157]. In Arnold White, the appellant had argued that the planning permission would remove the need to comply with an RSN and effectively trump the felling licence regime. The present case raised a different question of whether a planning permission or emerging development plan allocation were capable of being material considerations.

Ultimately, Lieven J concluded that the Minister erred by not taking into consideration the public interest in the delivery of housing and therefore the effect of frustrating that delivery by upholding an unamended RSN: at [172]. Those matters were, in her view, capable of being material considerations for the Minister.

Ground 3

Ground 3 challenged the rationality of the RC’s approach to considering alternative land. In particular, Smar submitted that the RC erred in requiring a wholly silvicultural justification for approving restocking on alternative land, and that the possibility that the restocked trees would be felled again after 10 years was plainly material to the discharge of the FC’s duty to promote the establishment and maintenance of growing trees.

As a matter of statutory construction, Lieven J held that: (i) s.17A(1A)(a) FA placed no preference between a RSN on the original land or such other land as may be agreed; and (ii) there was no exceptionality test on either ordering or agreeing that the RSN should be applied to alternative land: at [135]. On the facts, Smar’s proposal to restock on alternative land should have been considered on its merits and not dismissed simply because there was no “Act of God” which prevented restocking on the original land: [172].

Ground 4

Ground 4 concerned the fairness of the appeal process and, in particular, the opportunity for the Committee Secretary to make further representations to the Minister without allowing the appellant an opportunity to respond. Smar had only been made aware of the Committee Secretary’s Note to the Minister when it was disclosed with the pre-action protocol response.

Lieven J accepted the SSEFRA’s submission that there was nothing in principle wrong with a civil servant advising a Minister: at [174]. She nevertheless expressed concern with the degree to which the Committee Secretary appeared to have become an advocate for the FC. Ultimately, having already found for Smar on the previous three grounds, the Judge decided that it was not necessary for her to determine Ground 4.

Conclusion

The judgment provides additional, important guidance on the interrelationship between the felling licence regime and the planning regime. Whilst there is no hierarchy between the regimes, as made clear by the Court of Appeal in Arnold White, the fact of a planning permission or an emerging development plan allocation is capable of being a material consideration for a decision maker determining an RSN appeal.

In addition, the judgment has rejected as unlawful the principle that an RSN can only be agreed to apply to alternative land where naturally occurring events render the original land unsuiatble. It will be possible for appellants to propose restocking trees on suitable alternative land where the benefit is greater than on the original land, such as where the trees have a higher prospect of being maintained in the longer term.

Hugh Richards acted for Smar at the appeal hearing and in the High Court. Jessica Allen appeared for Smar in the High Court.