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

The factual background to the Smar case

Smar is the freehold owner of land at Keynsham Garden Centre, Hicks Gate, Keysham, Bristol. Between February and March 2019 Smar felled trees on the land without a felling licence. They felled 8 field maples and 17 poplars, amounting to nearly 54 m³ of timber. This greatly exceeded the exemption from licence control of the felling of 5 m³ in any quarter (s.9(3) of the FA 1967). The felled land amounted to an area of about 2 ha.

On 9 March 2020 the Commission served a restocking notice under s.17A requiring the planting of whips before 30 June 2021 at a density of at least 1,100 trees per hectare, or 2,233 trees. Paragraphs 4 and 5 of the schedule to the notice required the trees to be maintained in accordance with good forestry practice for a period of 10 years from planting and the replacement of any trees which fail or die or are lost during that period.

On 5 May 2020 Smar appealed against the restocking notice to the Secretary of State under s.17B. It contended inter alia that the notice would undermine the intention of Bristol City Council to include the land as part of a strategic allocation of a larger area of land for a residential neighbourhood with 750 new homes in the Bristol Local Plan Review: Draft Policies and Development Allocations (Consultation draft March 2019). The draft Plan indicated that this would also require the removal of the development site from the Green Belt. Smar pointed out that even if the felled area were to form part of the development plan allocation and planning permission were to be granted, the effect of the restocking notice was that the development could not be carried out for the 10 year period while the maintenance requirements of paras.4 and 5 of the schedule to the notice remained in force. Smar added that it would not be “in the wider public interest” to blight the development potential of the land as part of “a possible strategic urban extension by inappropriate tree protection”. The “interests of amenity” would best be served by “considering the future of the land in the planning context, rather than simply requiring the land to be restocked without considering possible alternative uses in the public interest”.

Smar contended that the site should be allowed to regenerate naturally (rather than be replanted with whips and maintained) while the future of the site is determined through the planning process. In the alternative, the requirement for replanting should be met on a different area of land.

The Commission took the stance that the felled area should be restocked, given that there was no apparent reason why it could not be restocked and there was no silvicultural reason for not doing so. In their representations to the committee dated 17 May 2023 the Commission pointed out that when the City Council became aware of the unlicensed felling, they made an “Area Tree Preservation Order” under the TCPA 1990 to protect the remaining trees on the site, notwithstanding the proposed allocation in the draft local plan. They also referred to the targets in the Environmental Improvement Plan published in 2018 for the planting of additional woodland (see [13] above) which assumed that “all current woodland is conserved”. In this context the Commission referred to the provisions in the Environment Bill, which became the Environment Act 2021, for the setting and achievement of environmental targets.

On 23 May 2023 Smar provided its written representations to the committee. It appears that the local plan process had gone no further than to produce in 2022 a second consultation draft plan. In an apparent attempt to avoid the effect of the Court of Appeal’s decision in Arnold White (see below), Smar now proposed that para. 4 of the restocking notice should be modified “in the public interest” so that the 10-year maintenance obligation would cease to apply in the following circumstances:

“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 the enactments replaced by that Act” at the beginning of that paragraph (This would reflect the position of s.9(4)(d) of the Act which would otherwise apply in the absence of a requirement on a RSN).”

The committee held a hearing and carried out a site visit on 2 June 2023. They produced a note of points made at the hearing. For example, the Commission reiterated that Government policy gives priority to tree-planting (and protection) in the context of combating climate change.

The committee produced their report to the Secretary of State. On “Issue 3 - Modifying the Restocking Notice to Accommodate Future Development” the committee said:

The Reference Committee accepted that the land in question may be removed from the Green Belt and earmarked for development at a future date. The Reference Committee however agreed that this did not mean that the felling was exempt from the requirement for a felling licence.

The Reference Committee considered the Objector’s suggestion that the Restocking Notice should be modified to provide for the possibility of felling the restocked trees in the event that the area is removed from the Green Belt and planning permission is obtained to build houses in the area. The Reference Committee agreed that this was not appropriate as it undermined both the felling licence regime and planning regime with respect to lawful tree felling.

The Reference Committee considered the argument that the prospect of housing development on the land is in the public interest, but considered the maintenance of the felling licence regime and the replacement of lost canopy cover as also in the public interest. The Reference Committee agreed that their remit is not to establish which of these public interests should take precedence, but rather whether the Restocking Notice was a reasonable and proportionate action in response to an act of illegal felling.”

On “Issue 4 – Planting an Alternative Area” the committee said:

The Reference Committee considered the issue of whether it would be appropriate to restock an alternative area to restore the loss incurred by the illegal felling.

The Reference Committee accepted that the restocked trees could be lawfully removed either through a felling licence or if specifically identified in a full planning permission after the 10 year maintenance period of the Restocking Notice expires. The Reference Committee also accepted that the area may become available for development before this expiration date. The Reference Committee did not, however, accept that this provided silvicultural justification that the area is ill suited to Restocking, agreeing that any such impediment would have to present an immediate obstacle to the prospect of tree planting.

The Reference Committee noted further that while an alternative area had been proposed, little to no evidence was provided that demonstrated the suitability and similarity of the alternative area to the area where the felling took place.”

In paras. 20 to 21 of their conclusions the committee said:

The Reference Committee concluded that while competing claims about public interest were made, these bore no material impact on the appropriateness of the 10 year maintenance period stipulated by the Restocking Notice conditions. The Reference Committee considered this period appropriate, and modifying the notice to allow felling for the sake of potential development would undermine the forestry and planning regulations around tree felling.

The Reference Committee concluded that an alternative restocking area was not justified, and that no appropriate silvicultural reason was immediately evident preventing the current site from being restocked.”

By email dated 28 September 2023 the secretary to the committee sent a “submission” to the Minister acting on the defendant’s behalf accompanied by the committee’s report, the restocking notice, the initial objection by Smar, a record of the hearing and a draft letter to Smar announcing the defendant’s decision. The submission by the committee’s secretary contained the following passages:

Recommendation: That you accept the conclusions of the Reference Committee and direct that the Notice should stand subject only to providing a new compliance date, allowing the Objector a full planting season to undertake the required restocking.

It would be most unusual for Ministers to reject the conclusions and recommendations of the Committee. I am not aware of any reason why the Committee’s recommendations should not be accepted in full in this case.

Enforcement processes are an essential element of the protection of our trees and woodlands, and there has been a strong commitment to this, this could be undermined if the recommendations of the Committee are not followed.”

On 6 November 2023 the defendant accepted the recommendation. She did not produce a decision document with her own reasoning. Instead, on the following day the secretary to the committee wrote to the objector to announce that the defendant “has decided to uphold the notice based on the conclusions of the Reference Committee”. It would appear that the defendant adopted the reasoning of the committee in its report on the appeal without any alteration. Both parties presented their submissions to this court on that basis.