Tree and Wildlife Action Committee Ltd, R (on the application of) v Durham Estates Ltd

Under the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999, screening must consider the whole project where deforestation is undertaken to convert land to another use. The assessment is not confined to the physical tree-felling. The proposed replacement use must also be considered, including its cumulative effects with the deforestation.

The requirement to consider cumulation with other projects is not limited to attempts to divide one deforestation project into smaller parts to avoid a threshold. It may include a linked development forming part and parcel of the same proposal. Whether projects properly cumulate is fact-sensitive, including considerations of proximity and combined effect.

The claimant sought judicial review of the Forestry Commissioners’ decision that no environmental impact assessment was required before woodland at Newbottle Wood was felled for a development including football pitches, changing rooms and car parking.

The Commissioners had treated the subsequent land use as generally outside the scope of the forestry assessment process. The central issue was whether the Forestry Regulations required consideration of the proposed replacement development, and whether the development had to be considered cumulatively with the deforestation.

1. Claim allowed. The Forestry Commissioners’ decision was quashed and the matter was remitted for reconsideration.
2. The proposed activity was deforestation for the purposes of conversion to another type of land use. Although the deforestation exceeded the applicable threshold, the screening obligation required the project to be assessed in its proper context.
3. The court construed the Forestry Regulations purposively, consistently with Council Directive 85/337/EEC. Where deforestation is undertaken to enable a different land use, the whole package must be considered, comprising both the deforestation and the use to be produced by it.
4. The Commissioners therefore had to consider whether the combined project was likely to have significant effects on the environment. Potential effects could arise from the replacement use, including effects on wildlife remaining in the woodland, such as those potentially caused by floodlighting.
5. The cumulation criterion in Schedule 3 was also engaged. The wide definition of “project” covered both the deforestation and the linked football-pitch development. Cumulation was not confined to artificial subdivision designed to keep individual deforestation projects below the threshold.
6. Whether projects cumulated was a question of fact. Relevant considerations could include proximity, combined effect and whether the projects formed part of the same proposal. The Commissioners should obtain relevant information from the local planning authority. An applicant must disclose additional proposals capable of affecting the project; failure to do so may render consent liable to be quashed.
7. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed. The interim injunction was continued until the decision not to appeal, or until the Court of Appeal otherwise directed.