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

The grounds of challenge in the High Court

WN relied upon the following three grounds of challenge in the High Court:

Ground 1

The Secretary of State’s decision was irrational given the committee’s finding that the replanted trees would be removed after a shortened maintenance period.

Ground 2

The committee and the Secretary of State unlawfully remitted the issue of an alternative area of land for planting to the Commission without considering the matter for herself, including whether the restocking notice should be modified so as to refer to alternative land.

Ground 3 The Secretary of State and the committee failed to determine an issue of law, namely whether the legal effect of the grant of full planning permission was that the Commission had no power under s.17A of the FA 1961 to serve a restocking notice (see [62]).

Smar relied upon the following four grounds of challenge in the High Court:

Ground 1

The committee erred in law by stating that the planning regime would be undermined if the restocking notice were to be modified in the manner suggested by Smar.

Ground 2

When considering Smar’s suggested modification to the restocking notice, the committee and the defendant erred in law by not taking into account the public interest in the development permitted, including the delivery of housing.

Ground 3

The committee and the defendant erred in law in requiring a “silvicultural justification” for them to be able to approve restocking on alternative land, and in excluding any other justification, in particular that advanced by Smar, namely the prospect of beneficial development taking place.

Ground 4

The process adopted was procedurally unfair in that the secretary to the committee, was an official of the Commission, not the Department. He was able to advance the Commission’s case without Smar being able to participate.

Smar revealed the interdependency between their grounds 2 and 3 in the Statement of Facts and Grounds (paras.16 to 18). They submitted that at the heart of their case lies a tension between the planning system and the forestry licensing regime. If tree felling is required within the scope of s.9(4)(d) of the FA 1967 no felling licence is necessary. But where a restocking notice is in place, trees cannot be felled during the maintenance period of up to 10 years, even if felling is “immediately required” in order to carry out development under a planning permission. Smar submitted that its modification of para. 4 of the restocking notice would reduce that tension, with which the defendant would otherwise have to grapple if, for example, the site were to be allocated for housing in an adopted local plan. Ground 3 related to Smar’s alternative suggestion for resolving that tension, namely to require the replanting to take place on alternative land. That was said to be justified by the public interest in the delivery of housing.