The claimant appealed against a restocking notice served by the Forestry Commission pursuant to section 17A of the Forestry Act 1967 following the felling of trees without a felling licence. The appointed reference committee produced a report on the basis of which the Secretary of State dismissed the appeal. The claimant sought judicial review challenging the Secretary of State’s decision, contending that the reference committee had erred in law by stating that the planning regime would be undermined were the appeals to be allowed, in circumstances where the claimant had proposed that the restocking notice be modified to allow development to take place within ten years if an emerging housing allocation in the relevant local plan review went ahead. The judge allowed the claim, rejecting the submission of the Secretary of State that the planning implications of a restocking notice were legally irrelevant in the determination of an appeal under section 17B of the 1967 Act unless a full planning permission had been obtained before the service of that notice and holding that (i) allowing the appeal and amending the restocking notice would not have undermined the planning regime by pre-empting the planning decision-making process since, on the claimant’s proposal, the restocking notice would remain fully effective unless and until planning permission were granted, (ii) a proposal under which the restocking notice was varied to allow the trees to be removed if planning permission were granted did not undermine the requirement in the notice to restock in advance of any permission, (iii) it had been irrational for the reference committee and the Secretary of State to reach the contrary conclusion and (iv) although that error was not central to the reference committee’s reasoning, it had been compounded by the Secretary of State’s failure to take into account the public interest in the delivery of housing, and therefore the effect of frustrating that delivery by upholding an unamended restocking notice, in circumstances where the claimant was proposing a mechanism that would keep the notice in place and to be met unless and until planning permission was granted, or alternatively, that the notice be modified to refer to alternative land. The Secretary of State appealed.
On the appeal—
Held, appeal allowed. On a true construction of the relevant statutory schemes, planning considerations which fell outside the objectives and factors expressly mentioned in the Forestry Act 1967, such as the overall merits of a proposed development or a public interest in its delivery, were irrelevant to the exercise of the power to serve a restocking notice and the ambit of any appeal against such a notice. Such considerations were also irrelevant to decisions on the length of any maintenance period or the issue of whether stocking should take place on alternative land. The focus of section 17A of the 1967 Act was simply to achieve the restocking of the land from which trees had been removed unlawfully. Only forestry and associated considerations were relevant, whether the land chosen for the replanting was the felled land or an alternative site. The statutory focus of the felling controls in Part II of the Forestry Act 1967, including section 17A, was the Commission’s forestry duties in section 1 and the provisions requiring forestry and associated considerations to be taken into account. The Act contained nothing to suggest that planning considerations for development control decisions were relevant to the exercise of any functions under Part II, in particular section 17A. Indeed, Parliament chose to refer in section 10(2) and section 17A(3) to “the amenities of the district”, to which the provision and maintenance of woodland might be relevant, but not to planning considerations in general. Nor, in exercising felling controls under Part II of the Act, was the decision-maker required to take into account the potential for development on a site, the prospect of section 9(4)(d) applying in the future or the implications of that prospect. It followed that in the present case the Secretary of state had not fallen into error in failing to take into account the planning merits of the housing development and its delivery, since those matters were irrelevant to the determination of the appeal against the restocking notice under section 17B. Accordingly, the judge had been wrong to allow the claim for judicial review (paras 102–103, 112, 114, 115, 134, 135, 136).
Zack Simons KC and Edward-Arash Abedian (instructed by Treasury Solicitor) for the Secretary of State.
Hugh Richards and Jessica Allen (instructed by Jury O’Shea LLP) for the claimant.