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

Lord Justice Holgate :

Introduction

Section 9(1) of theForestry Act 1967 (“FA 1967”) requires a person to obtain a felling licence from the Forestry Commissioners (now generally referred to as “the Commission”) for the felling of growing trees. By s.17(1) it is an offence for anyone to fell a tree without a felling licence required by s.9(1).

Section 9 contains a number of exclusions from that requirement. In particular, s.9(4)(d) provides that a felling licence is unnecessary for any felling which is “immediately required” for carrying out development authorised by a planning permission granted under the Town and County Planning Act 1990 (“TCPA 1990”). In R (Arnold White Estates Limited) v Forestry Commission [2022] EWCA Civ 1304; [2023] PTSR 242 the Court of Appeal stated at [65] that:

“Felling will be “immediately required” where the planning permission definitely requires it to be done if the development permitted is to proceed, and does not entail any further relevant approval having to be obtained from the local planning authority. This would include a grant of full planning permission or a grant of outline planning permission together with the subsequent approval of reserved matters in a “multi-stage development consent” process. It would exclude an outline planning permission without the necessary approval of reserved matters, which would be only the first stage in such a “multi-stage” process …”

Generally, the approval of relevant details of layout, access, design of buildings and landscaping is necessary to identify which trees are required to be felled in order for the development to proceed. The parties agree that these principles correctly state the law.

Where it appears to the Commission that a person interested in land has committed an offence contrary to s.17(1), it may serve a notice under s.17A requiring him to restock the land with trees and to maintain them in accordance with good forestry for up to 10 years. Alternatively, the notice may require that person to stock with trees such other land as may be agreed between the Commission and himself. A “restocking notice” is sometimes referred to as a “RSN”.

By s.17B where a person objects to the restocking notice with which he has been served, he may bring an appeal to the Secretary of State. The Secretary of State must refer the matter to a reference committee (“the committee”) unless he considers the grounds of appeal to be frivolous. After giving the appellant an opportunity of appearing before them and carrying out any necessary site inspection (s.27(3)), the committee must make a report to the Secretary of State (s.17B(1)(b)). After considering that report, the Secretary of State must direct the Commission to withdraw the restocking notice or to notify the appellant that the notice shall have effect subject to such modifications as he or she shall direct (s.17B(2)).

By definition, a restocking notice cannot be served in relation to the felling of trees to which the exemption in s.9(4)(d) applied. But in circumstances where that exemption did not apply, and a restocking notice is served, the central issue in this case is whether the future prospect of the subject land being allocated for development in a local plan or granted planning permission for development, or the public interest in such development taking place, are relevant considerations in an appeal to the Secretary of State against that notice.

This appeal relates to one of three applications for judicial review against the determination of s.17B appeals by the Secretary of State. She upheld each of the restocking notices with no, or relatively minor, modifications. The applications were heard one after another by Lieven J. She gave a single judgment dealing with all three cases ([2024] EWHC 2034 (Admin); [2024] PTSR 1837). The judge dismissed the application for judicial review in R (Wickford Development Company Limited) v Secretary of State for Environment, Food and Rural Affairs. Wickford was granted permission to appeal against that order. Our judgments in that appeal were handed down on 10 July 2025 ([2025] EWCA Civ 882).

The two other judicial reviews, relating to entirely different sites and s.17B appeals, were brought by Witham Nelson Investments Limited (“WN”) and by Smar Holdings Limited (“Smar”). The judge allowed both applications for judicial review on certain grounds and quashed the Secretary of State’s decisions to uphold the restocking notices in each case. The judge’s conclusions in the Smar case relied substantially upon her reasoning in the WN case and so it is necessary for me to refer to the latter as well.