Hearing date: 17 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 10 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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Lord Justice Lewis:

INTRODUCTION

1. This appeal concerns the consideration by the respondent, the Secretary of State for Environment, Food and Rural Affairs, of an objection to a restocking notice served on the appellant, Wickford Development Company Limited (“Wickford”) under section 17A of the Forestry Act 1967 (“the 1967 Act”) requiring the appellant to restock land with trees.

2. In summary, a licence is required to fell trees save in specified circumstances. It is a criminal offence to fell trees without a licence. Where it appears to the Forestry Commissioners (“the Commissioners”) that a person has committed an offence, they may serve a restocking notice on the person requiring the person to restock the land with trees. If the person objects to the notice he may appeal to the Minister. The objection is referred to a reference committee which reports to the Minister, who will then decide whether to uphold the restocking notice.

3. In the present case, the Commissioners served a restocking notice on Wickford as it appeared to them that Wickford had felled trees on land to the south of Newton Hall in Dunmow without a licence. Wickford objected on the grounds that it was an abuse of power to serve a restocking notice in circumstances where a prosecution for an offence had been discontinued and the time for taking further criminal proceedings had expired. The matter was referred to a reference committee who reported to the Minister. Its report to the Minister said that the legal issue of whether a restocking notice could be served following the discontinuance of a prosecution was beyond the remit of the committee. It considered and rejected an objection which alleged that the number of trees that Wickford had to plant was disproportionate. The Minister upheld the restocking notice.

4. Wickford sought judicial review of the Minister's decision on three grounds, only two of which are material to this appeal. First it said that the respondent had failed to address the issue of whether service of the restocking notice was an abuse of power or, alternatively, if she had, she had failed to give adequate reasons for dismissing that objection. Secondly, it said that the Minister had failed properly to address the objection that a requirement to restock the land with 242 trees when only nine trees had been felled was disproportionate.

5. Lieven J. (“the judge”) dismissed the claim. On the first issue, the judge accepted that either the Minister had not dealt with the objection relating to the abuse of process or, if she had, she had failed to give adequate reasons for her decision not to uphold that objection on that ground. The judge held, however, that she would not grant a remedy to quash the restocking notice. She was satisfied that the abuse of process argument was wrong and she would have refused a remedy pursuant to section 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”) as it was highly likely that the outcome for Wickford would not have been substantially different if the conduct complained of had not occurred. On the second issue, the judge found that the use by the Commissioners of standard restocking practice in determining the number of trees that should be planted was a lawful exercise of judgment.

6. Wickford appeals on two grounds which can be summarised as follows:

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THE LEGAL FRAMEWORK

7. The Commissioners are a body comprised of a chairman and up to ten members. It was continued in existence by the 1967 Act. The Commissioners are charged with the general duty of “promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products” (see section 1 of the 1967 Act).

8. Part III of the 1967 Act deals with restrictions on felling. Section 9 requires a licence from the Commissioners for the felling of trees and provides, so far as material that:

“17A.—Power of appropriate forestry authority to require restocking after unauthorised felling.

13. There is provision for a person served with a restocking notice to appeal. He may serve a notice of objection, in the prescribed form, requesting the Minister to refer the matter to a committee appointed under section 27 of the 1967 Act (known as the reference committee). The reference committee is to make a report to the Minister who, after considering the report, may direct the Commissioners to withdraw the notice or may uphold the notice with or without modification. The relevant provisions are in section 17B of the 1967 Act which provides:

THE FACTUAL BACKGROUND

The Felling of Trees

15. Wickford is the owner of land lying to the south west of Newton Hall, Dunmow. At some stage in about October or November 2017, trees were felled on land without a felling licence having been obtained under section 9 of the 1967 Act. The evidence before this court as to the number of trees that were felled is limited. The likelihood is that it is either nine trees, as claimed by Wickford, or five individual trees and four groups of trees. The Commissioners were informed on 23 November 2017 that felling had occurred on the land.

The Criminal Proceedings

16. In May 2018, the Crown Prosecution Service charged Wickford with an offence contrary to section 17 of the 1967 Act in that it had felled trees between 21 and 22 November 2017. Wickford was requisitioned to appear before the magistrates' court on 26 June 2018. It pleaded not guilty. A hearing was listed but adjourned. Eventually, on 3 March 2020, the Crown Prosecution Service served a notice discontinuing the criminal proceedings. The reasons for that are not clear. On one reading, there was difficulty in proving the exact dates when the unlawful felling occurred. On another, there may have been difficulties in securing the attendance of a witness. There had been a suggestion that a felling licence was not required as the land where the trees were growing was a garden but that is not the case. After 22 November 2019, it was no longer possible to bring proceedings charging Wickford with unlawful felling (alleging, for example, that the felling took place on different dates) as section 17 provides that proceedings may not be brought more than two years after the date of the offence.

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The Restocking Notice

17. The Commissioners were satisfied, however, that an offence of unlawful felling had occurred notwithstanding the absence of a successful prosecution resulting in a conviction. They served a restocking notice dated 25 June 2020 on Wickford. That required Wickford to restock an area of land (identified in an attached map) with 1,100 stems per hectare which equated to 242 trees and to maintain the trees for a period of ten years.

The Notice of Objection

18. Wickford objected and served a notice of objection using the prescribed form. In light of the grounds of appeal, it is necessary to set out ground 1 in full:

19. The other ground of objection material to this appeal was ground 3 which was that the notice required the planting of 242 trees which “greatly exceeds the number of trees that were on the site in 2017 and in requiring this number of trees to be planted the notice is grossly disproportionate”.

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The Written Submissions

20. The objection was referred to a reference committee. Counsel for Wickford made written submissions to the reference committee. They described ground 1 of the notice of objection in the following terms:

21. The written submissions set out the history of the criminal proceedings. It set out the statutory provisions governing felling licences, prosecutions and restocking notices. The submissions were to the effect that the reasons underlying the change were to be found in three paragraphs of the report of the Regulatory Reform Committee of the House of Commons which considered the proposed draft order to substitute a new section 17A. Wickford's written submissions set out paragraphs 42, 52 and 56 of the report. Those paragraphs, together with paragraphs 54 and 57 of the report (which are material to Wickford's argument) read as follows:

22. Detailed submissions were then made on what was referred to as objection 1. The submissions noted that the CPS had concluded that there was no realistic prospect of proving an offence. It noted that the effect of the time limit in section 17(2) of the 1967 Act meant that any prosecution could not be brought more than two years after the offence had been committed (and that time limit had now passed). The submissions said that the Commissioners appeared to believe that a restocking notice could be served long after the time limit for bringing proceedings had expired and that this “cannot have been what Parliament (or the Forestry Commissioners) intended when section 17A was amended in 2006”. This section of the written submissions concluded by saying that:

23. In relation to the objection that the notice was disproportionate, paragraphs 38 and 39 of the written submissions said:

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24. The Commissioners submitted two written documents; one was described as principal submissions and the other as a rebuttal submission. They submitted that the fact that the CPS had discontinued the criminal proceedings did not prevent the Commissioners from serving a restocking notice where, as here, it appeared to them that an offence had been committed. They submitted that any question of whether the notice had been served unlawfully was better dealt with by way of judicial review and that such matters were outside the competence of the reference committee. In relation to ground 3, the Commissioners submitted that section 17A provided power to require the person to restock, not replace, the trees lost. It submitted that:

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The hearing before the reference committee

25. There was a hearing before the reference committee. The notes record that counsel for Wickford submitted that it was “wrong to serve a restocking notice when proceedings for prosecution had been discontinued and could no longer be brought”. Counsel's detailed oral submissions on that issue are recorded. On proportionality, counsel is recorded as submitting that the requirement to restock with 242 trees, as a replacement for the nine felled trees, was “over the top”. The notes record that the representative of the Commissioners said that standard planting requirements for trees was 10,000 stems per hectare and the Commissioners were requesting roughly 1/10th of that at 1,100. That would cost approximately £500. The chair of the reference committee asked for clarification, noting that the trees would be “whips” not mature trees, and asking why 242 were appropriate when nine trees had been felled. The response from the Commissioners is noted as being that:

The Reference Committee Report and the Minister's Decision

26. The reference committee made a written report to the Minister. Paragraph 1 dealt with ground 1 of the objection and said:

27. The report then dealt with other grounds of objection (not relevant to this appeal). It dealt with the objection on grounds of proportionality and its conclusion in the following terms:

28. The ministerial decision is contained in an e-mail from an official at the department to the secretary of the reference committee. It states that the Minister has “cleared the following cases” and a list of cases, including that of Wickford's, is shown.

The Judgment

29. The judgment records that counsel submitted that it was an abuse of the Commissioners' powers for them to serve a restocking notice given that a prosecution had been withdrawn and the time limit for bringing a prosecution had now expired. Counsel is recorded as accepting that he was not relying on the report of the Regulatory Reform Committee for the purposes of statutory interpretation as it was accepted that section 17A of the Act did not restrict the circumstances in which a restocking notice could be served. However, counsel relied on the report to establish that the serving of the restocking notice was an abuse of power. Counsel had submitted that, even if the assurance from the Commissioners to the regulatory committee were not a binding assurance, it was a material consideration. The Minister had not dealt with that argument and had not given reasons for her decision. The judge said this at paragraph 86 about the reference committee's report:

30. In relation to whether the Minister had considered the argument or failed to give reasons for her decision, the judge said this:

31. The judge declined to grant a remedy for the following reasons:

THE FIRST GROUND OF APPEAL – THE REFUSAL OF A REMEDY

32. Mr Green, for Wickford, submitted that Wickford's objection was not simply or primarily as to the legality of Commissioners' decision but as to the fairness of it. He submitted that the Regulatory Reform Committee report recorded an assurance by the Commissioners as to when they would consider it inappropriate to serve a restocking notice. Serving the restocking notice in the present case did involve a departure from that assurance, or at the very least the minister should have had regard to the assurance. She did not do so. Further, Mr Green submitted that the judge was wrong to conclude that it was highly likely that the outcome for Wickford would not have been substantially different if the Minister had had regard to the assurance and to deny a remedy on that basis.

33. Ms Sargent, with Mr Bishop, for the Secretary of State, submitted that the objection did amount principally to a legal argument that it was an abuse of power to serve a restocking notice. There was no general argument advanced by Wickford that the service of the notice was unfair in a way that fell short of being unlawful. In those circumstances, the judge was correct to refuse a remedy for the reasons given.

Discussion and conclusion

34. The starting point is the nature of ground 1 of the objection made by Wickford. I am satisfied that the ground of objection was that there was a legal impediment or bar to the Commissioners exercising their power to serve a restocking notice when a prosecution had failed and the time limit for bringing further criminal proceedings had passed. The circumstances were said to be such that service of the restocking notice 18amounted to “an unlawful abuse of the power in section 17A” (see ground 1 of the objection) or to be “unlawful or at least so unfair as to amount to an abuse of power in section 17A” (see the written submissions). The unlawfulness, or abuse, was based on one of two arguments.

35. First, in the notice of objection itself, the unlawfulness was tied, at least in part, to what was said to be the intention underlying section 17A of the 1967 Act. That argument is misconceived. In fairness, Mr Green recognised before us, and the judge below, that the fact that a successful conviction had not been brought (and the time for bringing criminal proceedings had now passed) did not mean that the Commissioners had no legal power to serve a restocking notice. It is clear from the words of section 17A that the Commissioners have power to serve a notice “where it appears” to the Commissioners that a person has committed an offence. A successful conviction is not a necessary precondition to service of a restocking notice provided that it appears to the Commissioners that an offence has been committed. The language of section 17A is clear.

36. Furthermore, that interpretation is reflected in the history of the legislation. Section 17A as originally enacted did require there to have been a conviction before a restocking notice could be served. That provision was substituted with a different section 17A which removed the requirement for a conviction and substituted, instead, the requirement that it must appear to the Commissioners that an offence has been committed. There are obvious reasons for the change. It may, for example, not have been in the public interest to bring criminal proceedings or there may be difficulties over evidence or establishing the dates on which unlawful felling took place. Provided that there was a lawful basis upon which it appeared to the Commissioners that, notwithstanding the absence of a conviction, an offence had been committed, the Commissioners had power to serve a restocking notice requiring the land to be restocked with trees.

37. The second basis upon which it was said that the exercise of the power to serve a restocking notice was unlawful, or so unfair as to amount to an abuse of power, was that it amounted to a departure from an assurance given by the Commissioners to the Regulatory Reform Committee. That, on any fair reading, is an argument that an assurance was given by the Commissioners and that the Commissioners resiled from, or breached, that assurance (without good reason) by serving a restocking notice. That is said to be unlawful because it amounts to an abuse of power or is so unfair as to be an abuse of power.

38. There are a number of difficulties with that argument. First, Wickford has not produced a copy of the assurances said to be made by the Commissioners. Rather, they are relying on the report of the Regulatory Reform Committee as an adequate record of what the assurances were. Second, (and assuming without deciding that the report of a committee of the House of Commons is admissible for establishing the existence of an assurance), the statements recorded to have been made by the Commissioners do not begin to amount to anything that could be said to be an assurance that a restocking notice would not be served in the circumstances of the present case (i.e., where there is no conviction, a prosecution was discontinued and the time limit for bringing a prosecution has passed).

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39. Mr Green relied upon a reference in paragraph 52 to the absence of an intention to issue a restocking notice in circumstances “where a conviction would presently be unlikely or impossible”. But that sentence needs to be read as a whole. It is referring to a situation where “there is no intention that the standard of proof required before a restocking notice is issued will in practice be lessened”. The approach of the Commissioners in this case does not involve any lessening of the standard of proof needed for it to appear that an offence has been committed. Further, the relevant section of the report (headed enforcement of restocking after the unlawful felling of trees) would need to be read in full (if it is admissible for this purpose) to ascertain the content and meaning of any assurances said to have been given. It is abundantly clear that the Commissioners understood that the proposed amendments to section 17A would enable them to serve a restocking notice where under the previous regime “the need to prove the offence in court or demonstrate a public interest in prosecution would make this impossible” (see paragraph 57 of the report).

40. There are other reasons why it is not possible to regard the statements said to be made by the Commissioners as amounting to an assurance. Such statements would need to be “clear, unambiguous and devoid of relevant qualification” (per Bingham LJ in R v Inland Revenue Commissioners ex p. MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 at 1569); and see paragraph 106 of the judgment of the Supreme Court in R (Friends of the Earth Ltd. and another) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190. The general observations said to have been made by the Commissioners do not begin to amount to any such clear or unambiguous assurance as to when the Commissioners would, or would not, serve a restocking notice.

41. It is clear, therefore, that neither of the two bases for contending that the service of the restocking notice in the present case was unlawful are established. As a matter of law, the Commissioners had power to serve a restocking notice and doing so did not involve an unlawful departure from any assurance said to have been given many years earlier.

42. Mr Green submitted that there might well be instances of unfairness, short of unlawfulness or abuse of power, and the Minister should have considered that issue, and given reasons for her decision not to uphold the objection on that ground. First, that is not, on any reasonable or fair reading of the notice of objection, or even the written and oral submissions, what the objection was about. Secondly, the submission is still based on the assumption that it is somehow “unfair” for the Commissioners to have served a restocking notice and the Minister should prevent that by directing the Commissioners to withdraw the notice. But the only two matters that have been advanced to suggest any unfairness is the question of the proper interpretation of section 17A and the departure from assurances alleged to have been given. For the reasons given, those matters did not involve any unfairness. There was no objection made that service of the notice was unfair for any other reason nor has any form of unfairness, short of abuse of power, been identified.

43. The next question arises out of the way that the judge below dealt with the fact that the Minister either did not consider the objection or failed to give reasons for dismissing it. I agree that the reference committee and the Minister should have considered the objection that it was unlawful or an abuse of power for the Commissioners to have served a notice. A person served with a restocking notice has a right to make an objection to the notice or its conditions. The objection has to be referred to a reference committee (unless it is frivolous). That committee must make a report to the Minister. 20It is implicit that that report will deal with the objection made. Similarly, the Minister, having considered the report, must decide whether to direct that the notice be withdrawn or tell the objector that it shall have effect (with or without modification). It is implicit that the Minister will consider and deal with the objection. All that follows from the process established by section 17B of the 1967 Act.

44. In the present case, the reference committee did not deal with ground 1 of the objection and the question of whether service of the restocking notice was unlawful. The natural inference is that the Minister did not deal with it either. There is certainly nothing in the e-mail from the departmental official to indicate that the Minister had considered the objection and decided to dismiss it. Mr Sargent submitted that the fact that the Minister dismissed the objection must mean that the Minister considered it. That does not follow. The evidence is equally consistent with the Minister accepting the report of the reference committee that the objection was principally based on legal grounds and was a matter for the courts to deal with, not the reference committee or the Minister. There is no evidence that the Minister did consider this aspect of the objection.

45. The next question, however, is what is the effect of the failure of the reference committee and the Minister to consider this particular objection. The nature of the objection was primarily a legal one: that the Commissioners had no power to serve a restocking notice or that it was an abuse of power, and so was unlawful, to do so. The reference committee and the Minister could not reach a final conclusion on those issues as the scope of the powers of the Commissioners, and whether the exercise of power was unlawful, was a matter for the court to determine. If the Minister decided that it was not unlawful, the objector could still seek judicial review on the ground that the Minister had erred in reaching that conclusion. Similarly, if the Minister had upheld the objection because she considered that the service of the notice was unlawful, the Commissioners could have sought judicial review on the ground that the minister had erred. Whilst the Minister had to consider the objection, and reach a conclusion on it, her conclusion would ultimately be subject to a final ruling by the court on the question of lawfulness. To that extent, the situation is akin to a body or tribunal having to determine whether or not it had jurisdiction, or power, to deal with a matter. It may have to take a decision on that question (in order to decide whether to deal with the matter). The question of whether or not the body does have jurisdiction is, however, ultimately a matter of law for the courts.

46. Against that background, the judge was correct not to quash the decision of the Minister. I would, however, express the reasoning differently. As the judge accepted, the service of the restocking notice was lawful. As the judge noted at paragraph 150, there was no breach of any relevant assurance and at paragraph 151, there was no breach of any statutory requirement. While the reference committee and the Minister should have dealt with the objection, it could not have been upheld as a matter of law. Any failure on the part of the Minister, or the reference committee, was not therefore material and could not affect the outcome of the appeal to the Minister.

47. That seems to me a preferable way of analysing the problem rather than resorting to section 31(2A) of the 1981 Act. Not all errors have to be analysed by reference to the terms of section 31(2A). The first question is whether the error led to the decision being unlawful. Some errors are not material and do not, therefore, render a decision unlawful. That is, on analysis, the situation here. Secondly, the question may be whether a remedy should be refused as a matter of discretion in the light of recognised principles or 21whether the court must refuse a remedy because of section 31(2A). In the present case, it was not necessary to consider the effect of section 31(2A) of the 1981 Act. I would, however, make the following observations. First, the judge relied upon the approach set out in R (Cava Bien Ltd) v Milton Keynes Council [2022] RVR 37. Second, she understood that case as requiring the court to conduct its own assessment. That approach is wrong, as this Court ruled in R (Bradbury) v Awdurdod Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) [2025] EWCA Civ 489 at paragraphs 71 and 74. As the Court indicated, reliance on the approach set out in Cava Bien would be likely to lead a court into error, as happened here (although, in fairness to the judge in the present case, she gave her decision before the Court of Appeal decision in Bradbury and at a time when it was common for courts to follow the decision in Cava Bien). For the future, the approach in Cava Bien should not be followed.

48. For those reasons, I would dismiss ground 1 of the appeal.

THE SECOND GROUND OF APPEAL — PROPORTIONALITY

49. Mr Green submitted that the power conferred by section 17A to serve a restocking notice was intended to remediate the loss of trees caused by unlawful felling. He submitted that there should be a reasonable relationship between the requirements of the notice and the offence believed to have been committed, that is the number and location of trees unlawfully felled. He submitted that, in the present case, nine trees were felled and it was disproportionate to require 242 trees to be replanted.

50. Ms Sargent submitted that the issue had been addressed and the reference committee, and the Minister, were entitled to reach the conclusion that they did.

Discussion

51. The power to serve a restocking notice arises when trees are unlawfully felled on land. The Commissioners may serve a notice where it appears to them that an offence has been committed by a person and that person has an estate or interest in the land in question. That land is the land where the trees stood before they were unlawfully felled. The restocking notice in the present case identified the land in question (and there has never been any suggestion that that description is incorrect or inaccurate in any way).

52. A restocking notice is defined as a notice which requires the person “to restock or stock with trees” the land (or such other land as may be agreed) and to maintain those trees for period of up to ten years (see section 17A(1A)). The section does not require trees felled to be replaced. It requires land to be restocked or stocked. Whilst the trigger for the exercise of the power is, therefore, the fact that an offence appears to have been committed by the unlawful felling of trees, the purpose of issuing a restocking notice is to restock the land, not simply to replace the number of trees felled.

53. Against that background, the Minister was entitled to conclude that there was nothing objectionable in the Commissioners using the standard industry practice for determining the number of saplings or young trees to be planted, with a view to a sufficient number of mature trees surviving to replace the canopy of trees that had been removed by the unlawful felling. As the judge said at paragraph 147 of her judgment “the use of a standard restocking density when deciding the terms of the [restocking 22notice] is, in itself, rational and as a matter of judgment, well within their statutory discretion”. I agree. I would dismiss ground 2.

CONCLUSIONS

54. For those reasons, I would dismiss this appeal. Ground 1 of the objection was, on analysis, a claim that it was unlawful to serve a restocking notice in circumstances where there had been no conviction, a prosecution had been withdrawn and the time limit for bringing a prosecution was passed. The objection was that the Commissioners did not, as a matter of law, have power to serve a notice in such circumstances, or that doing so involved resiling or departing from an earlier assurance. As a matter of law, those arguments were wrong. The service of the restocking notice was lawful and this ground of objection could not be sustained as a matter of law. While the reference committee and the Minister should have considered that ground of objection, the failure to do so was, ultimately, immaterial as this ground of objection would have failed as a matter of law. Further, the Minister was entitled to find that there was nothing objectionable in deciding the terms of the restocking notice by reference to the standard industry practice for determining stocking density.

Lady Justice Falk

55. I agree.

Lord Justice Holgate

56. I also agree.