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

The appeal to the Court of Appeal

The Secretary of State’s ground of appeal reads:

“That the learned Judge was wrong to hold that “the broad public interest in delivering development” under the town and country planning regime can, and sometimes must, be taken into account in decisions about enforcement under the forestry regime.”

As explained above, this issue goes to both grounds 2 and 3 in the High Court, or as the judge put it at [153], the heart of Smar’s claim.

Mr. Simons submitted that the judge’s conclusions on grounds 2 and 3 depended on three premises:

There is a general public interest in the delivery of new housing development;

Assuming (1) to be correct, the FA 1967 permits that interest to be taken into account in, for example, an appeal against a restocking notice;

Assuming (2) to be correct, that factor was obviously material in this case, such that the defendant was legally obliged to take it into account. It was irrational not to have done so.

Mr. Hugh Richards for Smar did not disagree with that analysis.

Mr Simons went on to submit that each of those premises was incorrect. As to the first, he said that there is no general public interest in promoting the delivery of housing, as opposed to other forms of development or protecting land from development. The release of the subject site for housing depends upon it being removed from the Green Belt in the local plan process, which is only justifiable in exceptional circumstances (NPPF paras.145-148). Such issues remain to be considered. When the defendant determined the appeal against the restocking notice, the draft local plan was at a relatively early stage. Although that notice had been served in March 2020, by the time of the hearing before the committee in June 2023, the local plan had not progressed beyond a second version of a reg.18 consultation draft. The plan had not been submitted to the Secretary of State for examination. It remained at an early stage in the process towards adoption. Even now, the examination is still under way.

On the second premise, Mr. Simons submitted that the planning system is one of several statutory schemes that control development. Such schemes separately fulfil differing statutory purposes. No one regime has primacy over the others, save and in so far as Parliament has so provided through legislation. The TCPA 1990 is concerned with all aspects of land use planning. The purposes of the FA 1967 and the relevant considerations for s.17A notices and appeals are set out in the legislation. They do not include a public interest in the carrying out of development. That matter falls within the planning regime and, in any event, should not be assumed in advance of a determination under that scheme.

On the third premise, the threshold for a finding of irrationality is high and was not reached in the circumstances of this case.

Mr. Richards submitted on behalf of Smar that the judge’s reasoning was correct. He also relied upon a Respondent’s Notice which seeks to uphold her decision on an additional ground, namely ground 4 in the Statement of Facts and Grounds.