Oct 6
The claimant was granted outline planning permission for mixed use development.. It subsequently applied for a felling licence for clearing and thinning of trees on the site. The Forestry Commission granted the felling licence, subject to detailed restocking conditions. Between November 2018 and February 2019 the claimant proceeded to fell trees on the site without complying with the restocking conditions under the licence. On 28 July 2020, some four weeks after the deadline for restocking, the Forestry Commission issued and served on the company a notice under section 24 of the Forestry Act 1967 in order to enforce compliance with the restocking conditions. On 14 September a further planning permission was granted, for an access road and drainage works on the site. On 13 January 2021 solicitors acting for the claimant wrote to the Forestry Commission, seeking confirmation that the obligation to re-stock under the licence had been superseded by the planning permission and was no longer enforceable. Over the following months, the parties continued to correspond and the Forestry Commission clarified that the “legal position” under section 24 of the 1967 Act was that a planning permission could not be acted upon if to do so would make it impossible to comply with the conditions on a notice issued under that provision, that planning permission did not remove the requirements of an extant and implemented felling licence, and that the Forestry Commission did not have the power to amend or withdraw such a notice once it had been issued. The final letter sent by the Commission outlining this position was dated 1 April 2021. On 18 June 2021, more than three months after the date on the notice, but less than three months after the final letter, the company issued a claim for judicial review, claiming that the Commission had acted unlawfully in maintaining or failing to withdraw the section 24 notice. Permission to proceed was refused on the papers on the grounds that the claim was “out of time”, since the relevant “decision” was from July 2020. A renewed application was refused on the basis of the claim being out of time, the judge also going on to find that all grounds of challenge were unarguable. The claimant was granted permission to appeal and an order was made that the case be retained in the Court of Appeal. The two issues for consideration in the Court of Appeal were (i) whether the claim was brought too late, so that it should be dismissed for that reason alone; and (ii) whether, if not, the Commission acted unlawfully in maintaining the section 24 notice.
On the appeal—
Held, appeal dismissed. Although the claim for judicial review was ostensibly directed at the defendant’s refusal to withdraw the section 24 notice in the course of the correspondence in the first four months of 2021, and specifically in the letter of 1 April 2021, the claimant’s real grievance was with the decision to issue the section 24 notice itself on 28 July 2020, and to maintain the notice when a planning permission incompatible with it was granted on 14 September 2020. The substance of the complaint was that, in the circumstances as they were at the time, the decision to enforce compliance with the restocking conditions on the felling licence was misconceived and unlawful. Assuming in favour of the claimant that, on the facts, its complaint fell outside the clearly defined grounds of a statutory appeal under section 25 against the section 24 notice and that in such circumstances the notice might, in principle, have been susceptible of challenge by a claim for judicial review, there was no reason why such a claim could not have been brought both “promptly” and not later than three months after the alleged grounds to make it first arose. None of the defendant’s letters could realistically be seen as formal decision-making under any provision of the 1967 Act. They were not in themselves amenable to judicial review and, in short, were not a “decision”. To describe them as such was to create an artificial target for a belated challenge to the section 24 notice itself and its being maintained. In circumstances such as these, the time for bringing a claim for judicial review could not be extended by generating correspondence whose effect, unless some new factor had emerged, was merely to confirm a decision which had been taken previously. To permit the time limit for issuing a claim for judicial review to be circumvented in this way would subvert the certainty which was an essential purpose of that time limit. Unless there was truly a new decision, the clock was not set running again by correspondence which only articulated a decision already made. If claims for judicial review could properly be pursued in a situation such as this, an aggrieved landowner who had been served with a section 24 notice could bring a challenge to the notice well beyond the period of three months after the notice had been served, and thus well after the time for making an appeal under section 25 on the grounds Parliament had provided. That would be contrary to the requirements of CPR r 54.5, and irreconcilable with the statutory scheme in the 1967 Act. Accordingly, the claim had been issued well out of time and without any proper justification for the delay being presented to the court (paras 49–53, 58, 90, 91, 92).
Per curiam. On the true construction of the provisions governing felling in the 1967 Act, a subsequent grant of planning permission does not automatically trump an extant felling licence, or the conditions imposed upon it. Where Parliament has seen the need to do so, it has expressly provided in the 1967 Act for the interrelationship of the land use planning system and the legislation for forestry. A question arises as to the status of a felling licence which is subject to restocking conditions, and which has already been relied upon as authorising the felling of trees on a site, when reserved matters approvals are subsequently issued, or full planning permission is granted, for development which could not be constructed if those conditions were complied with. In such circumstances, the reserved matters approvals or the grant of full planning permission does not have the effect of removing the need for compliance with the requirements of the restocking conditions on the felling licence itself, or the corresponding requirements of a statutory notice issued under section 24 of the 1967 Act to enforce compliance with those conditions. There is no implied general power under the 1967 Act to withdraw a section 24 notice. Nor, if there were such a power, would a failure or refusal to withdraw the section 24 notice be irrational or otherwise unlawful (paras 63, 64, 66, 79, 80).
David Elvin KC and David Hercock (instructed by Gosschalks LLP) for the claimant.
Zack Simons and Anjoli Foster (instructed by Treasury Solicitor) for the defendant.