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

The statutory framework

Forestry Act 1967

The Commission was originally constituted under the Forestry Acts 1919 to 1947. Those statutes, along with the Forestry Act 1951, were repealed in the consolidation enacted by the FA 1967.

The Commission is the “appropriate forestry authority” in relation to England (s.1(1A)). It is under a general duty to promote “the interests of forestry, the development of afforestation and the production and supply of timber and other forest products in England” (s.1(2)). That general duty includes an obligation to promote “the establishment and maintenance in England … of adequate reserves of growing trees” (s.1(3)). Section 1(3A) provides that in discharging its functions under the Forestry Acts 1967 to 1979, the Commission shall:

“so far as may be consistent with the proper discharge of those functions, endeavour to achieve a reasonable balance between—

the development of afforestation, the management of forests, the production and supply of timber and

the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest.”

The Commission’s general duty was widened by the Forestry Act 1951 to include the promotion of the establishment and maintenance of adequate reserves of growing trees. This widening of the duty was accompanied by the introduction of a statutory licensing regime to regulate the felling of growing trees, along with the exemption in s.2(2)(h) of the 1951 Act for felling immediately required in order to carry out development authorised under the Town and Country Planning Act 1947. In R (Grundy & Co) v Halton Division Magistrates’ Court [2003] EWHC 272 (Admin); 1 PLR 89 the Divisional Court stated at [50] that the 1967 Act “is concerned with an issue of public concern, namely the preservation of the country’s natural heritage …”.

The duty to establish and maintain adequate reserves of growing trees needs to be seen in a broader statutory context. Section 1 of the Climate Change Act 2008 was amended as a result of the UK’s ratification of the Paris Agreement. Section 1(1) now imposes a duty on the Secretary of State to ensure that the Net Zero Target is achieved by 2050.

Section 1(1) of the Environment Act 2021 (“the EA 2021”) empowers the Secretary of State to make regulations setting long-term targets in respect of any matter relating to the “natural environment” (as defined in s.44). By The Environmental Targets (Woodland and Trees Outside Woodland) (England) Regulations 2023 (SI 2023 No.90), which came into force on 30 January 2023, the Secretary of State set a target that by the end of 2050 at least 16.5% of all land in England is to be covered by “woodland and trees outside woodland”. The Secretary of State is under a duty to ensure that the target is met (s.5).

By s.8 of the EA 2021 the Secretary of State is also under a duty to prepare an “Environmental Improvement Plan” for significantly improving the natural environment in England. The current Plan is the “Environmental Improvement Plan 2023” published on 31 January 2023. It revises the initial Plan published on 11 January 2018 (“A green future: our 25 year plan to improve the environment”). The 2018 Plan had set a target to increase woodland cover to 12% of England by 2060. The 2023 Plan increased that target in line with the target in the 2023 Regulations. That increase represents about 250,000 ha of land, an area the size of Cheshire. The 2023 Plan states:

“Defra’s arms’ length bodies – and those across government – will also continue to play a crucial role in delivering the plan. This plan has been developed with support from experts in ... the Forestry Commission …” (p.17)

“The target is key to achieving our Net Zero Strategy.” (p 35)

The 2023 Plan also sets an “interim target” (see ss.11 and 14 of the EA 2021) to increase woodland cover by about 34,000 ha by 2028.

The Commission’s Strategy 2023-28 “Thriving for the Future” explains the importance of woodland for inter alia bio-diversity and reducing levels of carbon in the atmosphere by capturing and storing carbon. This concept of carbon sinks is intrinsic to the definition of net zero in Art.4(1) of the Paris Agreement. The Strategy also reiterates the target for tree cover in the 2023 Regulations and the requirement to plant 34,000 ha of new tree cover by 2028 to support the country’s plans for reaching net zero by 2050.

Section 8A of the FA 1967 imposes a general duty on the Secretary of State in performing his functions under the Act to have regard to the national interest in maintaining and expanding the forestry resources of England.

Part II of the FA 1967 contains powers to control the felling of trees. Section 9(1) imposes a requirement to obtain a felling licence for the felling of growing trees, subject to the exclusions in s.9(2) to (4):

A felling licence granted by the Commissioners shall be required for the felling of growing trees, except in a case where by or under the following provisions of this Part of this Act this subsection is expressed not to apply.

Subsection (1) above does not apply—

to the felling of trees with a diameter not exceeding 8 centimetres or, in the case of coppice or underwood, with a diameter not exceeding 15 centimetres; or

to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space; or

to the topping or lopping of trees or the trimming or laying of hedges.

Subsection (1) above does not apply to the felling by any person of trees on land in his occupation or occupied by a tenant of his—

where the trees have a diameter not exceeding 10 centimetres and the felling is carried out in order to improve the growth of other trees; or

where the following conditions are satisfied, that is to say—

the aggregate cubic content of the trees which are felled by that person without a licence (exclusive of trees to whose felling subsection (1) above does not apply) does not exceed 5 cubic metres in any quarter; and

the aggregate cubic content of the trees so felled which are sold by that person whether before or after the felling (exclusive as aforesaid) does not exceed 2 cubic metres in any quarter, or such larger quantity as the Commissioners may in a particular case allow.

Subsection (1) above does not apply to any felling which—

is for the prevention of danger or the prevention or abatement of a nuisance;

is in compliance with any obligation imposed by or under an Act of Parliament, including this Act;

is carried out by, or at the request of, an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as to have the effect mentioned in paragraph 9(1) (a) or (b) of Schedule 4 to the Electricity Act 1989;

is 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.”

Section 10 provides for an application for a felling licence to be made to the Commission by a person having an estate or interest in land sufficient to enable him to fell the trees growing there. Section 10(2) provides:

Subject to the provisions of this Act (and, in particular, to their duty to take advice under section 37(3)), the appropriate forestry authority may on any such application grant the licence, or grant it subject to conditions, or refuse it, but shall grant it unconditionally except in a case where it appears to them to be expedient to do otherwise—

in the interests of good forestry or agriculture or of the amenities of the district;

for the purpose of complying with their duty of promoting the establishment and maintenance of adequate reserves of growing trees; or …”

Section 12 deals with the attachment of conditions to a felling licence. Section 12(1) provides:

The conditions which may under section 10(2) or 10(2)(a) or (b) above be attached to a felling licence are such as the appropriate forestry authority, after consultation with the applicant for the licence, determine to be expedient for securing—

the restocking or stocking with trees of the land on which the felling is to take place, or of such other land as may be agreed between the appropriate forestry authority and the applicant; and

the maintenance of those trees in accordance with the rules and practice of good forestry for a period not exceeding ten years.”

Section 15 deals with the interface between the felling licence regime and the scheme in Chapter 1 of Part VIII of the TCPA 1990 dealing with tree preservation orders (“TPOs”). The Commission may refer an application for a felling licence to the relevant local planning authority, to be dealt with by the latter under the TCPA 1990. Alternatively, where a local planning authority maintains its objection to a proposal by the Commission to grant a felling licence, the application for that licence must be referred to the Secretary of State to be dealt with under the TCPA 1990.

By section 16 of the FA 1967 a person aggrieved by a decision of the Commission to refuse a felling licence or to grant it subject to conditions, may apply to the Secretary of State for that decision to be reviewed. The Secretary of State will refer the matter to a committee who will report back to him. The Secretary of State must then issue a decision confirming, reversing or modifying the decision of the Commission.

Section 17 imposes a criminal sanction for the felling of a tree without any required felling licence:

Anyone who fells a tree without the authority of a felling licence, the case being one in which section 9(1) of this Act applies so as to require such a licence, shall be guilty of an offence and

in relation to an offence committed in Wales, liable on summary conviction to a fine, or

in relation to an offence committed in England, liable on summary conviction to a fine.

Proceedings for an offence under this section may be instituted within six months from the first discovery of the offence by the person taking the proceedings, provided that no proceedings shall be instituted more than two years after the date of the offence.”

Section 17A confers on the Commission a power to serve a restocking notice after unauthorised felling. Originally, this power was only exercisable where a person was convicted of an offence under s.17. But in 2006 s.17A was amended so that it need only appear to the Commission that a person to be served with a notice has committed an offence under s.17.

Section 17A now provides:

The appropriate forestry authority may serve a notice under this section (a “restocking notice”) on a person where—

it appears to the appropriate forestry authority that he has committed an offence in England or Wales under section 17 of this Act,

…

and … he has such an estate or interest in the land in question as is mentioned in section 10(1) of this Act.

(1A) A restocking notice is a notice requiring the person on whom it is served—

to restock or stock with trees the land or such other land as may be agreed between the appropriate forestry authority and him; and

to maintain those trees in accordance with the rules and practice of good forestry for a period, not exceeding ten years, specified in the notice.

(1B) A restocking notice served by the Commissioners is a local land charge; and for the purposes of the Local Land Charges Act 1975 the Commissioners are the originating authority as respects the charge.

…….

Subject to the provisions of this Act, in considering whether to issue a restocking notice the appropriate forestry authority shall—

have regard to the interests of good forestry and agriculture and of the amenities of the district;

have regard to their duty of promoting the establishment and maintenance of adequate reserves of growing trees; and

take into account any advice tendered by the regional advisory committee for the conservancy comprising the land to which the restocking notice would relate.

This section shall not apply in relation to trees to which a tree preservation order relates or in relation to trees the felling of which took place before the date of coming into force of the Forestry Act 1986.”

Section 17B provides a right of appeal to the Secretary of State against a restocking notice:

A person on whom a restocking notice has been served who objects to the notice or to any condition contained therein may by notice served within the prescribed time and in the prescribed manner request the Minister where the restocking notice relates to land in England or Wales to refer the matter to a committee appointed in accordance with section 27 of this Act; and—

the Minister shall, unless he is of the opinion that the grounds of the request are frivolous, refer the matter accordingly; and

the committee, after compliance with subsection (3) of that section, shall thereupon make a report to the Minister.

The Minister may, after considering the committee's report, direct the appropriate forestry authority to withdraw the notice or to notify the objector that it shall have effect subject to such modification as the Minister shall direct.”

Section 17C provides for the enforcement of restocking notices by applying the provisions in s.24 for the service of a compliance notice and the accompanying right of appeal against such a notice (s.25). It does so as if s.24 referred first to a restocking notice instead of a felling licence and second to the person on whom that notice was served instead of an applicant for a felling licence.

Section 24 provides so far as is material:

The provisions of this section shall apply if—

any works required to be carried out in accordance with conditions of a felling licence are not so carried out; or

any felling directions given by the appropriate forestry authority are not complied with.

The appropriate forestry authority may give to the person responsible a notice requiring such steps as may be specified therein to be taken within such time (not being less than the prescribed period after the notice has become operative) as may be so specified for remedying the default; and for purposes of this subsection, “the person responsible” is—

in the case of non-compliance with conditions of a felling licence, the person specified in subsection (2A); and

in the case of non-compliance with felling directions, the owner of the trees.

(2A) The person referred to in subsection (2)(a) is—

where the licence relates to land in England or Wales—

the applicant for the licence, if on the date the notice is served he has such estate or interest in the land as is referred to in section 10(1) of this Act; or

in any other case, the owner of the land.

…

If after the expiration of the time specified in the notice any steps required by the notice have not been taken, the appropriate forestry authority may, subject to the following section, enter on the land and take those steps

Without prejudice to the powers of the appropriate forestry authority under the foregoing subsection, a person who without reasonable excuse fails to take any steps required by a notice given to him under this section shall be guilty of an offence and be liable on summary conviction to a fine not exceeding level 5 on the standard scale; and proceedings in respect of such an offence may be instituted within six months of the first discovery of the offence by the person taking the proceedings, provided that no proceedings shall be instituted more than two years after the date of the offence.”

Section 25 provides a right of appeal against a s.24 notice:

If a person to whom a notice under section 24 is given claims—

that the works in question have been carried out in accordance with the conditions of the felling licence or, in the case of felling directions, that they have been complied with; or

that the steps required by the notice to be taken are not required by the conditions or directions,

he may by a notice served on the Minister where the notice is given in respect of land or trees in England or Wales, in the prescribed manner and within the prescribed period after the receipt of the notice under section 24, request the Minister to refer the matter to a committee appointed in accordance with section 27 below.

A notice under section 24 shall be inoperative until the expiration of the prescribed period for the purposes of subsection (1) above and, where a request to the Minister under that subsection is made, until the conclusion of any proceedings under this section in pursuance of the request.

Where such a request is made by a person receiving a notice under section 24, the Minister shall, unless he is of opinion that the grounds for the request are frivolous, refer the matter accordingly to a committee so appointed.

The committee to whom a matter is referred under this section, after complying with section 27(3), shall make a report on the reference to the Minister and who shall, after considering the report, confirm or cancel the notice to which the reference relates.”

The constitution of, and process to be followed by, a committee dealing with inter alia an appeal under s.16, 17B or s.25 is addressed by s.27, which provides so far as is material:

References in sections 16, 17B, 20, 21, 25, 26A, 26B and 26C of this Act to a committee appointed in accordance with this section are to a committee consisting of—

a chairman appointed by the Minister in relation to cases where the trees are, or the land is, in England or Wales; and

two other members selected by the Minister from a panel of persons appointed by him, after such consultation as is provided for below, for the conservancy in which the trees are growing: But this is subject to subsections (1A) and (1B).

(1A) The members of a committee appointed in relation to a case concerning trees or land in England shall not include any Forestry Commissioner or employee of the Commissioners.

(1B) The members of a committee appointed in relation to a case concerning trees or land in Wales shall not include any member or employee of the Natural Resources Body for Wales.

The consultation required by subsection (1)(b) above is to be with—

the regional advisory committee for the said conservancy; and

organisations appearing to the Minister to represent the interests of owners of woodlands and timber merchants respectively; and

organisations concerned with the study and promotion of forestry.

On any reference being made to them under this Part of this Act a committee appointed in accordance with this section shall—

afford to the person concerned with the subject-matter of the reference an opportunity of appearing before them and of making representations to them on the matter in question;

if they think fit, or are so required by the said person, inspect the trees or land to which the reference relates; and

take into consideration any information furnished to them by the appropriate forestry authority as to the performance within the conservancy in which the trees are growing of their duty of promoting the establishment and maintenance of adequate reserves of growing trees.

For purposes of this subsection “the person concerned with the subject-matter of the reference” is the person at whose request the reference was made, except that in the case of a reference by the Minister of a notice under section 21 it is the person by whom the notice was given.

…”

Planning legislation

A decision-maker determining an application for planning permission must have regard to inter alia the provisions of the statutory development plan (s.70(2) of the TCPA 1990) and that determination must be made in accordance with the plan, unless material considerations indicate otherwise (s.38(6) of the Planning and Compulsory Purchase Act 2004 – “PCPA 2004”).

Each local planning authority must prepare development plan documents which identify its strategic priorities for the development and use of land in its area and its policies for addressing those priorities. In doing so, the authority must have regard to national policies and advice contained in guidance issued by the Secretary of State for Housing, Communities and Local Government (s.19 of the PCPA 2004). The Secretary of State’s National Planning Policy Framework (“NPPF”) requires authorities inter alia to include policies in their plans for meeting the assessed needs for housing and other forms of development (see para. 20), subject to other planning considerations.

The procedure for the preparation and adoption of development plan documents is contained in the PCPA 2004 and The Town and Country Planning (Local Planning) (England) Regulations 2012 (SI 2012 No. 767). I give a brief summary. During the preparation of a local plan the authority must consult on a draft and take into account the representations received (reg.18). At the next stage the authority must prepare a further draft of the plan to be submitted to the Secretary of State for examination by an independent Inspector (s.20 of PCPA 2004). That submission version of the draft plan must be published so that the public may make representations which are forwarded to the Secretary of State for consideration during the examination process held in public (regs. 19-20 and 22-24). The Inspector sends a report to the authority on the examination of the plan together with his or her recommendations on whether or not the plan may be adopted and if so subject to modifications. The authority may adopt the plan but only in accordance with those recommendations (ss. 20 and 23).