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

The factual background to the Witham Nelson case

WN bought a site with the intention of carrying out development. In December 2017 they obtained outline planning permission for the erection of 7 houses, subject to the approval of certain reserved matters. During 2019 trees were unlawfully felled on the site. On 29 May 2020 full planning permission was granted for 9 bungalows on the site. Preliminary works were carried out pursuant to that permission, so that it was implemented and ceased to be time-limited.

On 3 November 2020 the Commission served a s.17A notice on WN requiring the restocking of 330 trees on the site and their maintenance for 10 years. The hearing of WN’s appeal took place on 26 June 2023.

In its report the committee discussed the implications of the developer having obtained a full planning permission (see [2024] PTSR at [62]-[64]). It was persuaded that it was “inevitable” that upon the expiry of the maintenance period any restocked trees would be removed by virtue of that permission and s.9(4)(d) of the FA 1967. It considered that to withdraw the restocking notice on this basis could set an unacceptable precedent whereby felling controls under planning legislation and the FA 1967 could be circumvented. A “nefarious actor” could fell trees without a licence, removing those trees from the consideration of a planning application, obtain full planning permission and then seek to defeat a restocking notice on an appeal. On the other hand, to uphold the restocking notice might appear to be more a temporary frustration of development than a restoration of woodland. However, the committee decided that the appropriateness of a restocking notice should be determined by the circumstances and silvicultural status of the site at the time when the trees were felled rather than by future circumstances. On that basis, the committee considered that the service of the notice had been appropriate in this case.

Nevertheless, the committee went on to say that the case before them was unusual because of the time which had elapsed, allowing the full permission to be implemented and rendering the site’s future development inevitable at the end of the period for which the s.17A notice required the restocked trees to be maintained. The committee concluded that there were “mitigating circumstances”. A modified notice would have to be served to exclude land which had been wrongly included in the original notice; the maintenance period of 10 years should run from the date of the original notice rather than the modified notice. This would result in a revised maintenance period of 6 years 6 months.

Because of the inevitability that any restocked trees on the felled land would be removed at the end of the maintenance period, the committee suggested that the defendant might conclude that planting on an alternative area would be preferable to restocking on the felled land, so as to secure the establishment of the trees in the longer term and associated benefits for biodiversity net gain and the protection of timber reserves.

Although the committee had said that both the Commission and WN be given the opportunity to consider this suggestion, the secretary to the committee raised it solely with the Commission. When the latter rejected the idea, the secretary told WN that the Secretary of State had decided that a revised restocking notice should be served with a maintenance period of 6 years 6 months from the date of the planting of the trees.