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

The judgment in the High Court

Lieven J said that there was a considerable overlap of issues between the cases, particularly between the claims brought by WN and Smar [6]. At the heart of those two cases was the relationship between the FA 1967 and the statutory planning regime. To a significant degree this turned on the Court of Appeal’s analysis in Arnold White [153].

The judge rejected the submission for the Secretary of State that, based on Arnold White, the planning implications of a restocking notice are legally irrelevant in the determination of an appeal under s.17B unless a full planning permission had been obtained before the service of that notice [153]. Arnold White was concerned with a different part of the statutory scheme and a different contention, namely that a subsequent grant of full planning permission (or approval of reserved matters) exempts a landowner from complying with the restocking condition of a felling licence or the requirements of a s.24 notice to enforce that condition. That argument was rejected by the Court of Appeal [154]. It held that the planning regime does not nullify the requirements of the FA 1967. There is no legislative hierarchy. The two statutory schemes are designed to operate together [155]. The concern in Arnold White was that a landowner or developer might be able to rely upon a planning permission to avoid the requirements of a felling licence, in particular a restocking requirement [156].

In the judge’s view the Court of Appeal’s reasoning did not deal with the less ambitious submission which WN and Smar advanced in the current claims, namely that the fact of a planning permission or an emerging development plan allocation are capable of being relevant considerations in the determination of an appeal against a restocking notice, including a contention that the notice should be amended so that replanting takes place on alternative land [157].

The claim by Witham Nelson

The judge said that grounds 1 and 2 in the WN case were closely related. That was because she saw the issues in the irrationality challenge in ground 1 as being linked to “the alternative land” argument the subject of ground 2. The judge said that the test for irrationality is high. Under ground 1 she accepted that the Secretary of State had been entitled to conclude that the potential for tree planting on the felled land to achieve 6.5 years’ growth justified the service of a restocking notice, particularly in view of the precedent effect of allowing a licence holder to rely upon a subsequent planning permission to avoid compliance with a restocking condition [158].

The decision in WN’s claim has not been appealed to this court and we have not heard any submissions from WN. But it appears to me that the judge was correct to reject the irrationality challenge in relation to the felled land for the reasons she gave in her judgment at [158], including her reference to the potential setting of an undesirable precedent, reflecting the policy of the FA 1967. That reasoning would appear to be consistent with the approach taken in Arnold White at [78]-[79] (see [91] below).

The judge then said that “the balance shifts decisively” once the potential for planting on alternative land was taken into account. Focusing on silvicultural issues and ignoring planning considerations, she said that there was plainly a greater benefit in stocking the alternative land suggested by WN where the trees could remain throughout their lives, as compared with the restocking of the felled land, where, on the committee’s findings, it was inevitable that trees planted on the felled land would be removed after 6.5 years. Accordingly, it had been irrational for the Secretary of State not to have fully considered WN’s proposal for planting trees on alternative land. Neither the committee nor the Secretary of State had considered whether that alternative land was unsuitable for stocking [159].

However, the judge then went further at [161] when she said that it was irrational for the possibility of the alternative land to be rejected, given that the stocking of that area would produce greater silvicultural benefits than the restocking of the felled land and that the precedent effect of allowing alternative land to be used was the only argument against that option [161]. She said that because of those greater silvicultural benefits, the precedent effect point could not rationally be a material consideration weighing against the use of the alternative land rather than the felled land for stocking. Furthermore, the felled area in this case was unsuitable for restocking because the trees planted would inevitably be removed after 6.5 years [163].

Although not a matter for decision in this appeal, it is appropriate that I indicate my reservations about the reasoning summarised in [59] above. It appears to me that each of the factors referred to by the judge involved matters of judgment for the decision-maker who would not, as a matter of rationality, be bound to come to only one view. Furthermore, even if the decision-maker were to conclude that the use of the alternative land for stocking would bring greater silvicultural benefits, it does not appear to me that that would render the precedent effect point legally irrelevant. The significance or weight to be attached to that factor would be a matter for the Secretary of State to evaluate, taking into account the policy of the FA 1967 that felling controls are intended to operate as a disincentive to landowners and others cutting down trees before obtaining full planning permission to develop land. In the light of the analysis in Arnold White e.g. at [78]-[79] (and see [91] below), I have difficulty in accepting the judge’s conclusion that this part of the reasoning in the determination of WN’s appeal was irrational. These are matters which the court would need to consider with the benefit of full argument if the point should fall to be decided in another case.

The judge then upheld ground 2 of the WN claim. The Secretary of State failed to consider the merits of restocking taking place on an alternative site. Instead, this matter was wrongly left to the Commission and their stance was wrongly allowed to be determinative [164].

The judge addressed “the specific issue raised in ground 3” at [168]. She said that the committee had been obliged to deal with the issue of law raised by the parties before them, or to refer it to be determined by the Secretary of State. The defendant failed to decide whether the grant of full planning permission rendered the subsequent service of the restocking notice unlawful (see Wickford at [43]-45]). The judge’s conclusion that that was a sufficient basis for upholding ground 3 is not consistent with the principle this court applied in Wickford at [46]. An error would need to be material before it would justify quashing a decision. Here, the legal argument which the Secretary of State failed to determine appears to be misconceived. The grant of a full planning permission after trees have been felled contrary to s.9 of the FA 1967 does not have the effect of negating the Commission’s power to serve a restocking notice under s.17A. Neither s.9(4)(d) of the FA 1967, nor any other part of the Act, suggests otherwise. The defendant’s error in failing to decide this point therefore appears to have been immaterial, as it could not have affected the outcome of the s.17B appeal. On that basis, it would not have justified the grant of a quashing order in the High Court.

The judge also dealt with ground 3 on a wider basis, which she considered to be closely related to grounds 1 and 2 of the claim by Smar [166]-[167]. She held that the broad public interest in the delivery of development could be a material consideration in the exercise of the powers relating to restocking notices. It is not a mandatory consideration in every case, but it is a matter which the Commission and, on appeal, the committee and the Secretary of State may take into account. No doubt the judge had in mind the analysis in the Supreme Court of material considerations in R (Friends of the Earth Limited) v Secretary of State for Transport [2020] UKSC 52; [2021] PTSR 190 at [116]-[121]. She went on to conclude that the “public interest” point was necessarily relevant in WN’s case, given the committee’s findings about the inevitability of the trees being removed and therefore “the limited silvicultural purpose of simply delaying development” [166]. This part of the judge’s reasoning involved essentially the same issues as her decision on Smar’s claim the subject of the Secretary of State’s appeal. Although WN’s claim is not before this court, I would note that the judge’s reasoning on ground 3 of that claim at [153]-[154], [157] and [166]-[167] is not consistent with the analysis of the legislation which I adopt at [94]-[115] below.

The Secretary of State did not appeal against the judge’s order on the WN claim. Mr Simons KC told us that the Secretary of State accepted that there was no basis for challenging at least one ground on which her determination of WN’s appeal had been quashed. It seems to me that the judge’s decision to uphold ground 2, namely that the alternative of stocking other land should have been considered by the Secretary of State, was not open to criticism and so the determination of the s.17B appeal was rightly quashed.

The claim by Smar

The judge upheld ground 1 of the claim. She held that the Secretary of State reached an irrational conclusion, namely that it would be inappropriate to modify the restocking notice in the manner suggested by Smar (see [37] above) because that would undermine the planning regime. Under Smar’s proposal the maintenance requirement in the restocking notice would remain effective unless and until a full planning permission (or approval of reserved matters) is granted. So it would not undermine the requirement of the notice to restock in advance of any such permission and it would not pre-empt the planning process [169-170].

The judge said that, applying s.31(2A) of the Senior Courts Act 1981, she would not have been willing to quash the defendant’s decision on ground 1 alone, as the committee’s reference to the planning regime had been “something of a throwaway line” which was not central to their reasoning.

However, the judge concluded in [172] that the defendant’s error under ground 1 was compounded by errors under grounds 2 and 3, which she dealt with together:

“Ground 2 is effectively the same as Witham Nelson’s ground 3. The minister erred by not taking into consideration the public interest in the delivery of housing and, therefore, the effect of frustrating that delivery by upholding an unamended RSN. For the reasons set out above, I consider that this is capable of being a material consideration for the minister. In this case, Smar were proposing a mechanism that would keep the RSN in place and to be met, unless and until planning permission was granted; or that the RSN should be modified to refer to alternative land. This is an argument that should have been considered on its merits, and not simply dismissed because there was no “Act of God” which would have prevented restocking on the original land.”

Under ground 2 Smar argued that in relation to its suggested modification of the restocking notice, the defendant had failed to take into account the public interest in the delivery of the housing development for which planning permission has been granted. Ground 3 related to Smar’s alternative contention that the notice be amended to require the restocking to take place on a different area without development potential. Paragraph [172] addressed both alternatives. The judge decided that the defendant erred in law by failing to consider both of them on their merits, taking into account the public benefit in the delivery of housing, and not purely silvicultural factors.

At [174] the judge said that although she had concerns about the role played by the secretary to the committee in the decision-making process, she did not think it necessary to determine ground 4.