CA-2024-002382 - [2025] EWCA Civ 1041

Discussion

R (Arnold White Estates Limited) v Forestry Commission

In June 2016 outline planning permission was granted for a mixed use development on a site near Newton Abbot, subject to a condition requiring the subsequent approval of the layout, scale and appearance of buildings and landscaping [23].

In October 2018 the Commission granted to the developer, Arnold White, a felling licence for the clear felling of 10.4 ha of land and the thinning of trees on a further 13.47 ha of land. The licence required the felled land to be restocked at a specified density and the new planting to be maintained for 10 years [26].

Between November 2018 and February 2019, and before obtaining approval of reserved matters under the outline planning permission, the developer felled trees pursuant to the felling licence. However, it did not comply with the restocking condition [28].

On 28 July 2020 the Commission served a s.24 notice on the developer requiring it to comply with the restocking condition by 28 October 2021. No appeal was brought against the notice [29]-[30].

In September 2020 a full planning permission was granted for an access road to the site and sustainable drainage systems. The development areas overlapped parts of the site in which felling had taken place. The planning officer’s report on the planning application said that there were no arboricultural objections to the proposed development as the majority of the site had already been clear felled [32].

The Commission’s position was that Parliament had not legislated for a grant of planning permission to override either the provisions of a felling licence, including a restocking condition, or a s.24 notice to enforce that condition [35].

The developer brought a claim for judicial review seeking declarations that the restocking condition did not preclude the carrying out of development under the permission, that it would be unlawful to enforce compliance with the condition, and that the Commission had the power to withdraw the restocking condition and the s.24 notice. They also sought an order requiring the Commission to withdraw the condition and that notice [43].

The matter came before this court as an appeal against the refusal of the High Court to grant permission to apply for judicial review on two bases: first, the application was brought too late and second, all of the grounds of challenge were unarguable. Sir Keith Lindblom SPT, with whom the other members of the court agreed, upheld the High Court’s decision that the claim was brought too late [46]-[58]. He said that it was therefore unnecessary for the court to address the remaining ground of appeal, namely whether the Commission had acted unlawfully in maintaining the s.24 notice. But, as the matter had been fully argued, he decided to deal with it [59].

Although the analysis by the Senior President of Tribunals of the statutory scheme and the effect of the s.24 notice was obiter, for the purposes of deciding this appeal, I agree with and adopt that analysis as set out below.

In Arnold White the developer did not challenge the felling licence or the s.24 notice [60]. But it argued that the subsequent grant of full planning permission overrode the requirements of the restocking condition in the licence, which it was the purpose of the s.24 notice to enforce. There was no justification for delaying development for 10 years where outline permission had been granted with approval of reserved matters to follow, given that a full grant of permission would enjoy the exemption in s.9(4)(d). The narrow, statutory grounds of appeal against a s.24 notice do not include changes of circumstance after the grant of a felling licence, such as the evolution of a development project from outline permission to approval of reserved matters or to a full permission. The appellant submitted that both the restocking condition in the licence and the s.24 notice had to yield to the principle underlying s.9(4)(d) of the FA 1967 [61].

The court rejected these submissions. Parliament provided in the FA 1967 for the interrelationship between the planning and forestry regimes where it saw the need to do so; see s.9(4)(d) and s.15. Section 9(4)(d) relates to a full planning permission, or to an outline permission together with an approval of reserved matters, from which it can be determined which, if any, trees are immediately required to be felled for the development authorised to proceed. Because the developer had obtained only an outline planning permission, it had needed to rely upon the felling licence for the removal of the trees. At that stage, the exemption in s.9(4)(d) was not engaged [65]-[66].

The court held that where a full permission (or reserved matters approval) is granted subsequent to the felling of trees pursuant to a licence, s.9(4)(d) does not apply to that felled area, and does not affect the operation of either a restocking condition in the licence or a s.24 notice for enforcing that condition. The subsequent permission does not override either the condition or the requirements of that notice [67]. The Court of Appeal reached that conclusion for the following reasons:

In a carefully constructed and self-contained scheme for the felling of trees, Parliament has explicitly legislated to the extent that it considered necessary to determine the relationship between the separate planning and forestry licensing regimes in cases where both are engaged by a proposal for development [68];

Parliament did not provide in the FA 1967 or in planning legislation that the licensing regime would be disapplied, or conditions on a licence or corresponding requirements in a s.24 notice annulled, by a later grant of planning permission, which would have engaged s.9(4)(d) had it been in place before the felling licence was applied for and acted on. This cannot be read into the legislation. So significant a change to the statutory felling scheme, which would negate the earlier lawful issue of a licence with restocking conditions, would have required explicit provision to be made [69];

The fact that in granting the outline permission the LPA took into account proposed tree felling, and required approval of details before felling could proceed, could not affect the operation of the FA 1967 or the restocking conditions in the felling licence [70];

Likewise the fact that it had been the owner’s intention throughout to develop the land did not affect the operation of the FA 1967. A developer can choose to wait until it obtains a full permission (or approval of reserved matters) before carrying out any felling with the benefit of the exemption in s.9(4)(d), or it can choose to fell trees pursuant to a felling licence before obtaining those approvals, in which case s.9(4)(d) provides no exemption from compliance with the conditions of the licence requiring restocking and maintenance.[70].

Sir Keith Lindblom said this at [71]:

“There is no inherent illogicality in the statutory provisions for felling licences as the Forestry Commission understands them. The land use planning system and the legislation for forestry comprise separate but co-ordinated statutory schemes. They are among several regulatory regimes which can bear on the progress of development on a site. They do not belong to a legislative hierarchy in which the planning system ranks above, and takes precedence over, the legislation for forestry. Parliament has addressed the interaction between them where it has seen the need to do so, in particular in sections 9(4)(d) and 15 of the 1967 Act. Far from subordinating the statutory regime for felling licences to that for planning permission, the enactment of that regime, which explicitly acknowledges the planning legislation, demonstrates the synergy between them. The duties of the Forestry Commission, set out in section 1 of the 1967 Act, require it to take a national view of forestry, to consider national supplies of timber, and to maintain adequate national reserves of growing trees. They go beyond the role of local planning authorities in discharging their development control functions. They involve considerations which would not necessarily be taken into account by those authorities when determining applications for planning permission. The two statutory schemes are designed to operate together where proposals for development engage them both. And the respective roles of the Forestry Commission and local planning authorities undoubtedly have much in common. But the remit and responsibilities of the latter cannot be said wholly to subsume those of the former.”

The court held that in issuing the s.24 notice in that case, the Commission must have concluded that it would not be consistent with good forestry for Arnold White, having had the benefit of carrying out felling in accordance with the licence, to avoid the burden of the restocking condition in that licence. The decision to issue the s.24 notice accorded with the Commission’s statutory purpose in s.1 of the FA 1967 [72]. It would not be absurd if the enforcement of the restocking condition in the licence rendered it difficult or impossible for a subsequent planning permission to be implemented. That was not a quirk of the relationship between the two statutory schemes, but was the result of the particular sequence chosen by the developer, in particular the carrying out of felling before it might be able to rely upon the exemption in s.9(4)(d) [73].

The court recognised that where a landowner or developer fells trees pursuant to a licence before applying for planning permission for a proposed development, the planning authority, when determining the merits of the application, may take into account the fact that those trees no longer exist, as they did in that case. However, that felling was only licensed on the basis of a condition requiring restocking. Furthermore, one reason why the court rejected the developer’s argument that s.9(4)(d) applied retrospectively to the felling of the trees so as to nullify a restocking condition in the s.10 licence and the requirements of the s.24 notice, was that this would compromise the effective regulation of tree felling by both the forestry and planning regimes [74]. In other words, the underlying principle is that in the determination of a planning application, tree felling, whether licensed or not, should not pre-empt the merits of preserving those trees or their replacements required by a restocking condition or a s.17A notice.

The court went on to reject Arnold White’s submission that the Commission had an implied power to withdraw a s.24 notice. But even if there was such a power, the court also rejected the submission that it would be irrational for the Commission to refuse to withdraw a notice enforcing a restocking condition, because,upon the expiration of the maintenance period in the felling licence, the developer would be able to remove trees planted to comply with that condition, relying upon a subsequent grant of planning permission and the exemption in s.9(4)(d) [78]-[79].

This led on to the court’s consideration of the nature of the Commission’s discretion in the use of its enforcement powers in Part II of the FA 1967 [82]-[85]. The court saw s.24 as forming part of a tightly composed group of provisions, which operate coherently to control felling. In every case, it is for the Commission, as a matter of its own discretion, to consider how it will be best for it to proceed, having regard to the interests of good forestry. It will consider whether, for example, it is expedient and necessary to take enforcement action. Having begun that process, which may include the service of a s.17A notice or a s,24 notice, the Commission is not obliged to continue with it. If there is an appeal against a notice it will consider whether it should contest that appeal and on what basis. It is also for the Commission to decide whether or not to pursue enforcement to a prosecution. In some cases the Commission may consider that to be unnecessary, or that it should not devote further resources to enforcement action, viewed again in the interests of good forestry. For example, it may be satisfied that the requirements of a notice under s.17A or s.24 have substantially been met on the site itself or made good by the planting of trees on other land nearby, or are likely be met through compliance with the requirements of planning conditions or an obligation under s.106 of the TCPA 1990.

Thus, the Commission may take into account a change of circumstance on the ground or in the planning history of the site, including a planning permission or approval of reserved matters which has in fact been granted since the enforcement process was begun. However, I would emphasise the following points on the use of discretion in the exercise of enforcement powers in Part II of the FA 1967. First, the Commission may, not must, decide whether to take into account such matters and, if so, how much weight to give them. Second, they may only take those matters into account in so far as that is compatible with their duties and powers under the FA 1967. In other respects the planning merits of a development granted planning permission are irrelevant, the subject to which I turn in the next section of this judgment.

Grounds 2 and 3 of the Smar judicial review – are planning considerations relevant to the determination of a planning application also relevant to the exercise of felling licence control?

Although Smar presented the main issue under grounds 2 and 3 as being whether the public interest in the delivery of housing is a relevant consideration in an appeal against a restocking notice, their argument, if accepted, would have a much wider effect. Generally, the recognition of such a public interest or benefit depends upon whether a decision has been made to release a site for a particular form of development, whether by a grant of planning permission or an allocation in an adopted local plan. Such a decision will have weighed up the various planning considerations, for and against a proposal, in order to decide whether the land may be developed for that purpose. Smar’s case therefore assumes that planning considerations or merits generally are relevant in the exercise of felling control under Part II of the FA 1967.

I therefore agree with the judge that the relationship between the FA 1967 and the planning regime lies at the heart of Smar’s claim [153]. However, I disagree with her suggestion at [154] that ss.17A-17C belong to a different part of the statutory scheme to the felling licence and enforcement provisions considered in Arnold White.

Part II of the FA 1967, comprising ss.9 to 36, is entitled “Power to Control Felling of Trees”. The core provisions of this part of the legislation were introduced as a single code by the Forestry Act 1951. Sections 17A-17C were embedded in Part II of the FA 1967 by the Forestry Act 1986, the long title of which reads:

“An Act to empower the Forestry Commissioners to require the restocking of land with trees after unauthorised felling.”

Sections 17A-17C were inserted at the end of the group of sections beginning with s.9 headed “Restriction of felling”. The requirements in s.17A(1A) for restocking and maintenance reflect similar requirements which may be imposed as a condition on a felling licence by virtue of s.12. As originally enacted, a conviction under s.17 for the felling of a tree without a licence required by s.9 was a pre-requisite for the service of a notice under s.17A. As amended, it is only necessary for it to appear to the Commission that an offence under s.17 has been committed before a restocking notice may be served. Section 17A provides the Commission with a tool for securing the restocking of felled land (or the stocking of alternative land) in addition, or as an alternative, to prosecution for an offence under s.17.

The controls on felling, including the power to serve a s.17A notice, are exercisable by the Commission, which is subject to the general duty in s.1 of the FA 1967. The Commission is to promote the interests of forestry, the development of afforestation, and the production and supply of timber and other forest products and “in that behalf shall have the powers and duties conferred or imposed on them by this Act”. That general duty was widened by s.1 of the Forestry Act 1951, at the same time as the introduction of the felling licence regime, to include “promoting the establishment and maintenance of adequate reserves of growing trees” (s.1(3) of the FA 1967). That additional duty includes the role of forests and woodland as carbon sinks for addressing climate change and the Net Zero Target ([11]-[14] above).

The Secretary of State and his Ministers also have a general duty in the performance of their functions to have regard to “the national interest in maintaining and expanding the forestry resources of England …” (s.8A of the FA 1967 with emphasis added).

The general duties of the Commission suffuse the controls on felling in Part II of the FA 1967. For example, under s.10 a licence to fell is to be granted unconditionally except where it is expedient to impose conditions in the interest of good forestry, agriculture or the amenities of the district, or for complying with the Commission’s dutyto promote the establishment and maintenance of adequate resources of growing trees (s.10(2)(a) and (b)). Those provisions also govern the imposition of conditions under s.12 on a felling licence for restocking (or stocking) and maintenance of trees (see s.12(1)). Similarly, in considering whether to issue a restocking notice, the Commission must have regard to inter alia the interests of good forestry, agriculture and the amenities of the district and their duty to promote the establishment and maintenance of adequate reserves of growing trees (s.17A(3)).

A person aggrieved by a decision of the Commission to refuse a felling licence or to impose conditions may seek a review under s.16. A person on whom a restocking notice has been served may appeal against the notice under s.17B. If the Commission serves a s.24 notice for failing to comply with a felling licence or a restocking notice, the person concerned may appeal against the s.24 notice to the Secretary of State on the limited grounds afforded by s.25(1). Whichever route is followed leads to the independent consideration of the decision in question by a committee under s.27. Section 27(3)(c) requires that committee to have regard to any information given to them by the Commission about the performance of the conservancy in which the trees are growing “of their duty of promoting the establishment and maintenance of adequate reserves of growing trees”.

Plainly, the statutory focus of the felling controls in Part II of the FA 1967, including s.17A, are the Commission’s forestry duties in s.1 and the provisions requiring forestry and associated considerations to be taken into account (e.g. s.10(2) and s.17A(3)). The FA 1967 contains nothing to suggest that planning considerations for development control decisions are relevant to the exercise of any functions under Part II, in particular s.17A. Indeed, Parliament chose to refer in s.10(2) and s.17A(3) to “the amenities of the district”, to which the provision and maintenance of woodland may be relevant, but not to planning considerations in general.

By contrast s.70(2) of the TCPA 1990 provides that the local planning authority shall have regard to the statutory development plan and to any other material planning considerations. A material, or relevant, planning consideration refers to any consideration to do with the character of the use of land (R (Wright) v Forest of Dean District Council [2019] UKSC 53; [2019] 1 WLR 6562).This concept is very broad. A decision on whether to grant planning permission generally turns on a planning authority’s weighing and balancing of a wide range of planning considerations for and against the proposal. Although those considerations may include arboricultural, forestry and associated factors, the ambit of planning control is broader than the felling control exercisable by the Commission, the committee and the Secretary of State under the FA 1967.

It is significant that the Commission’s powers to control felling operate in the context of duties topromote certain forestry objectives, including the establishment and maintenance of adequate reserves of growing trees. The legislation does not qualify those duties by reference to other considerations, such as factors relevant to the determination of planning applications, or a public interest in the delivery of development. There is therefore no real legal space for planning considerations to be weighed within a statutory framework which imposes unqualified obligations on the Commission to promote the forestry objectives laid down by Parliament.

Although the committee and the Secretary of State are not subject to the same duties in s.1 of the FA 1967 as the Commission, their function is sometimes described as that of “review” (s.16). Even where a right of appeal is conferred, the FA 1967 does not suggest that the committee or the Secretary of State may have regard to a broader range of considerations than the authority from which the appeal is brought.

As was stated in Arnold White, planning and felling control are separate but co-ordinated statutory regimes. Parliament has defined the points of interaction between the schemes, s.9(4)(d) and s.15. It is not suggested that there are any other points at which the two regimes interact.

In Arnold White this court made it clear that a developer or landowner who wishes to rely upon s.9(4)(d) must wait until he obtains a full grant of planning permission necessitating the removal of trees, if he is to fell them without a licence under s.10. If, however, he wishes to fell trees before a full planning permission is granted, he must obtain a felling licence (unless another exemption applies) and comply with any restocking and maintenance conditions imposed in the licence. There is no absurdity if the enforcement of those conditions should make it difficult or impossible for a subsequent planning permission (detailed or otherwise) to be implemented. Any consequential delay to implementation of a development project is simply the consequence of the developer having chosen to follow that particular sequence of actions (Arnold White at [71]-[73]).

The policy of the FA 1967 is clear. The exemption from felling control in s.9(4)(d) only applies if a detailed planning consent is obtained beforehand, because it is that type of consent which will enable the trees needing to be removed to be identified. Even so, the developer must be able to show that the removal of any particular tree is “immediately required for the purposes of carrying out” the development. That formulation is compatible with the Commission’s duties in s.1 of the FA 1967.

Where a developer chooses not to obtain a full planning permission, but fells trees pursuant to a felling licence, the FA 1967 enables the Commission to insist upon compliance with restocking and maintenance conditions of the licence (Arnold White), having regard to its statutory duties in s.1. If and when a full planning permission is subsequently obtained, the potential delay to the carrying out of development operates as a clear disincentive to a developer to “jump the gun” by felling trees the removal of which is not justified at that stage, at least not for development purposes. By contrast, felling after the grant of a full planning permission need not cause any material delay to that project. It will normally be possible in advance of that permission to identify the trees to be removed and to make appropriate arrangements for that work to be carried out after the permission is granted so as not to hold up the project.

The FA 1967 does not treat any differently a landowner or developer who fells trees in breach of s.9 and has only an outline permission or no permission at all. Indeed, there is no good reason for the legislation to put such a party in any better position compared to a developer who, as in Arnold White, relies upon a licence to fell trees subject to a restocking condition, before obtaining a full planning permission. That would remove the disincentive in the statutory scheme against the precipitate removal of trees.

Thus, the Commission can serve a restocking notice under s.17A without waiting to see whether the developer can obtain a relevant, full planning permission. The Commission can also require replanting to be maintained for up to 10 years without being concerned with the planning merits of a development for which a detailed planning consent may, or may not, be granted in the future, or with whether a maintenance period should be reduced because a developer anticipates the grant of such a consent. It may turn out that a full permission cannot be obtained, or that any consent which is obtained is not capable of being implemented, whether fully or at all, for one reason or another. Even something which appears at one stage to be a future inevitability may not in fact occur.

I conclude that planning considerations which fall outside the objectives and factors expressly mentioned in the FA 1967, such as the overall merits of a proposed development or a public interest in its delivery, are irrelevant to the exercise of the power to serve a restocking notice and the ambit of any appeal against such a notice. Such considerations are also irrelevant to decisions on the length of any maintenance period or the issue of whether stocking should take place on alternative land. The focus of s.17A is simply to achieve the restocking of the land from which trees have been removed unlawfully. Only forestry and associated considerations are relevant, whether the land chosen for the replanting is the felled land or an alternative site.

There is one further indicator in the legislation which reinforces these conclusions. Section 27 of the FA 1967 provides that the committee is to comprise a chairperson appointed by the Secretary of State and two other members from a panel of persons appointed by him “for the conservancy in which the trees are growing”. By s.35 a “conservancy” means any area designated by the Commission as a conservancy for the purposes of performing their functions. The Secretary of State must consult on the appointment of such members with the regional advisory committee for that conservancy, and organisations representing the interests of owners of woodland and timber merchants or concerned with the study and promotion of forestry (s.27(1)(b) and (2)). By s.37(1) the Commission is obliged to maintain a regional advisory committee for each conservancy to advise them on the performance of their functions under s.1(3) (the promotion of adequate reserves of growing trees) and Part II of the FA 1967. Thus, the composition of the committee for reporting on appeals to the Secretary of State reflects the statutory focus on forestry not planning considerations.

The main principles in the above analysis may be summarised as follows:

only the interests of good forestry (and agriculture and local amenity) and the duties in s.1 of the FA 1967 are relevant to the exercise of felling controls;

the planning merits of a proposed development (other than matters falling within (1) above) are irrelevant to the exercise of felling controls under Part II of the FA 1967, irrespective of whether the scheme has been granted planning permission or is the subject of an allocation in an adopted or an emerging development plan document;

the exemption from felling control in s.9(4)(d) of the FA 1967 only applies to felling which takes place after, not before, the grant of a full planning permission or the approval of reserved matters;

in exercising felling controls under Part II of the FA 1967, the decision-maker is not required to take into account the potential for development on a site, the prospect of s.9(4)(d) applying in the future or the implications of that prospect.

It follows that the judge should not have upheld grounds 2 and 3 of Smar’s claim for judicial review because the defendant did not take into account the planning merits of the housing development and its delivery. Those matters were irrelevant to the determination of the appeal under s.17B of the FA 1967. This is dispositive of the Secretary of State’s single ground of appeal. However, there are additional issues which the court should address.

The defendant’s exercise of discretion in this case

In Arnold White the Court of Appeal accepted that there is a discretion as to how enforcement under Part II of the FA 1967 is to be pursued, in which a decision-maker may take into account inter alia changes in circumstance, including an actual grant of planning permission, and the making good of the loss of trees on an alternative site (Arnold White at [82]-[85] and see [92] above).

In its appeal to the Secretary of State, Smar contended that first, the maintenance requirement in the s.17A notice should be modified to accommodate a future grant of planning permission (see [37] above); and second, the restocking notice should be amended so as to require planting on an alternative area of land instead of the felled land. It follows from the analysis of the legislation set out above that the first point was irrelevant to the determination of the s.17B appeal, but the second matter was capable of being relevant.

In any event, the committee and the Secretary of State declined to accept Smar’s case on both points for reasons which cannot be impugned.

In para. 12 of its report the committee concluded that the modification suggested by Smar was inappropriate because it undermined the felling licensing regime. Neither Smar nor the judge criticised that conclusion.

However, the committee and the Secretary of State also concluded that Smar’s proposed modification of para. 4 of the restocking notice would undermine the planning regime. I should say straight away that there is no tension between that conclusion and the principle stated in [112] above. The committee and the Secretary of State only referred to the undermining of the planning system in the context of the protection of trees, which is entirely consistent with the statutory purposes and ambit of the FA 1967.

Smar challenged that conclusion of the committee and the Secretary of State on the basis that its proposed modification would not affect the restocking and maintenance requirements in the s.17A notice unless and until a full planning permission is granted. Under ground 1 the judge accepted Smar’s contention. She decided that it had been irrational to conclude that the modification would undermine the planning regime. However, the judge refused to quash the decision on ground 1 alone because she regarded the finding in question as “something of a throwaway line” and not central to the reasoning. Instead, she regarded ground 1 as compounded by the errors under grounds 2 and 3 (see [172]). I have explained why the claim should not have succeeded in relation to grounds 2 and 3, but was the judge wrong to make a finding of irrationality under ground 1? The point is of some importance for the future operation of the felling licence regime.

One problem with Smar’s argument is that it assumes that the decision-making process under the planning system completely disregards both the trees which have been felled (whether lawfully or unlawfully) and any restocking requirements. As I have explained at [90] above, that is incorrect. Consequently, a decision-maker could properly say that Smar’s proposed modification of the s.17A notice, disapplying the requirement to maintain the restocked trees should a full planning permission be granted before the end of the 10-year maintenance period, would undermine effective regulation of the felling of trees by the planning regime as well as by the forestry regime. The conclusions of the committee and the Secretary of State are consistent with Arnold White. In cases of this kind there is a legitimate concern that the felling of trees before the determination of a detailed planning application, will or may pre-empt or distort the planning authority’s assessment of the merits of conserving those trees, whether trees removed with many years growth or restocked young whips. Both the Commission and planning authorities may take a long-term view of the conservation of trees.

It follows that I disagree with the judge’s reasons at [169]-[170] for deciding under ground 1 that the conclusion of the committee and the defendant on the undermining of the planning regime was irrational. Ground 1 of the claim for judicial review should have been rejected.

I would add two further reasons as to why the modification proposed by Smar was unsound. First, the modification would automatically terminate the requirement in the s.17A notice for the restocked trees to be maintained whenever a full permission happens to be granted, irrespective of the actual circumstances at that future point in time. In other words, the condition would improperly interfere with the ability of the Commission to exercise its judgment as to what approach to enforcement would be in the best interests of forestry at that stage. Second, the modification implies that it has been decided under the forestry regime that the merits of conserving the replanted trees may be left to be dealt with by the planning regime. But there is no hierarchy as between these two regimes (save as provided for in s.15 of the FA 1967). The merits of protecting the replanted trees is plainly a matter to be addressed under the FA 1967. In addition, it would be open to the Commission to make representations to a local planning authority determining any future planning application on the felled land as to why the trees should be protected from development.

In relation to ground 3 in the High Court, the committee stated at para.16 that while Smar had proposed an alternative area of land for stocking, little or no evidence had been submitted to show its suitability and similarity to the felled area for replanting. That conclusion cannot be impugned. It was therefore a sufficient basis upon which the committee was entitled to reject the alternative land argument. Accordingly, ground 3 could not succeed.

In addition I note that in the last sentence of para. 15 of its report, the committee also rejected Smar’s case that restocking should take place on an alternative site on the basis that the felled land was unsuitable for restocking. They indicated that the potential for housing development did not represent an “immediate obstacle to the prospect of tree planting”. Plainly, they had in mind s.9(4)(d) along with the uncertainty of any development potential on the felled land, a point which the Commission had advanced. Smar’s case was simply based upon a proposed allocation in a reg.18 draft of an emerging local plan, which remained to go through the reg.19 stage, independent examination and final consideration by the authority. A final allocation of the site would depend upon an alteration of Green Belt boundaries. Smar was some way away from being able to obtain a full planning permission for housing development on the site. They had “jumped the gun” when they felled the trees. No criticism can be made of the committee and the Secretary of State for rejecting Smar’s alternative land case on this additional basis, although there was no legal requirement for them to go that far.

Respondent’s notice - ground 4 of Smar’s claim

In its Respondent’s Notice Smar contended that the judge’s decision should be upheld on the basis set out in ground 4 of the claim.

Section 27(1A) of the FA 1967 provides that the members of a committee appointed to deal with a case dealing with trees or land in England may not include a Forestry Commissioner or an employee of the Commission. The object is to maintain the independence of the committee from the Commission. The practice of a Forestry Commission official acting as the secretary to the Commission, although not raised before us, is a matter which may require consideration for the future.

Ground 4 is concerned with the way in which the Secretary of State was briefed on the taking of the decision on the appeal in this case. It is perfectly normal for a Minister to receive a submission or briefing from officials in his or her department to assist in the making of a decision. A submission may summarise material, present documents and provide advice (see e.g. R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726).

However, the briefing referred to in [42] above was not prepared by a departmental official. Instead, the author was an official of the Forestry Commission, serving as the secretary to the committee. But the Secretary of State was required to determine an appeal brought by Smar against a s.17A notice served by the Commission. Both the Commission and Smar were parties to the dispute before the committee and the Secretary of State. Further, it was the role of the committee to report on matters: not for its secretary to express views on the merits after the committee had issued its report.

It was plainly inappropriate for one of the Commission’s officials, who had acted as secretary to the committee, to be submitting to the decision-maker briefing material which included statements as to why the report of the committee should be accepted and the appeal dismissed (see the advice in paras. 4, 11 and 17 at [42] above).

However, it is common ground that the court should not intervene unless this error has caused substantial prejudice to Smar. There is no such thing as a technical breach of natural justice (George v Secretary of State for the Environment (1977) LGR 689).

As matters stand there is no dispute that Smar unlawfully felled trees contrary to s.9 of the FA 1967 and the power to serve a restocking notice was engaged. The outstanding issues relate to the terms of the maintenance period and the use of an alternative site for stocking. Both of those complaints depend on the premise that the overall planning merits of the development, in this case housing (including the public interest in the delivery of that development) are relevant considerations. They are not. Accordingly, the inappropriate briefing of the Secretary of State did not vitiate her decision on the s.17B appeal. I would reject ground 4.