Hugh Richards and Jessica Allen appear in the Court of Appeal in Smar Holdings Limited v SSEFRA

Today, the Court of Appeal will hear an appeal by the Secretary of State for Environment, Food and Rural Affairs (‘SSEFRA’) against the decision of the High Court to quash a Forestry Act 1967 (‘FA’) restocking notice (‘RSN’) concerning land which forms part of an emerging housing allocation in the Bristol City Council Local Plan Review (‘the Site’). The judgment can be found here.

The recipient of the RSN, Smar Holdings Limited (‘Smar’), had felled trees on the Site without first obtaining a felling licence or planning permission. The Forestry Commission (‘FC’) subsequently became aware of the felling and carried out several site visits, following which it was concluded that over 53m³ of timber had been felled. The FC served a RSN on Smar which included a requirement that the restocked trees be maintained for 10 years.

Smar appealed the RSN to the SSEFRA, who referred the matter to a reference committee (‘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 statutory exemption under s.9(4)(d) FA that felling is permissible if immediately required for the purpose of carrying out development authorised by planning permission. The SSEFRA ultimately decided to uphold the RSN.

Smar succeeded in its judicial review of the SSEFRA’s decision on three of its four grounds:

• On ground 1, Lieven J agreed with Smar that the RC’s conclusion (accepted by the SSEFRA) that the planning regime would be undermined by amending the RSN to allow felling sooner than 10 years was irrational as the proposed amendment did not undermine the restocking requirement or pre-empt the planning process.
• On ground 2, Lieven J found that the SSEFRA had 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.
• On ground 3, Lieven J held that Smar’s proposal to restock the trees 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.

Having found for Smar on those grounds, Lieven J did not consider it necessary to determine ground 4, which concerned the fairness of further representations being made by the Committee Secretary in a note accompanying the RC’s report to the SSEFRA without allowing Smar an opportunity to respond.

The SSEFRA has appealed to the Court of Appeal on the basis that the proposition that public interest planning considerations may be material to forestry enforcement decisions is not supported by the judgment in Arnold White Estates Ltd v The Forestry Commission [2022] EWCA Civ 1304, in which Lindblom LJ indicated that Parliament had legislated as much as it considered necessary to achieve synchronicity between the two regimes. Smar also seeks to uphold Lieven J’s decision on the original ground 4.

The matter is listed for one day. Hugh Richards and Jessica Allen appear for Smar, the Claimant/Respondent, and are instructed by Jury O’Shea LLP.