Arnold White Estates Ltd. v The Forestry Commission

The Court of Appeal dismissed the appellant's challenge to correspondence and a maintained notice under section 24 of the Forestry Act 1967. The court held that the real decision for challenge was the Forestry Commission's issue of the section 24 notice on 28 July 2020, and the claim was brought out of time under CPR Part 54.5. Even if time had been met, the court concluded that the Forestry Commission did not act unlawfully in maintaining the notice: the statutory scheme in the 1967 Act does not provide that a later grant of planning permission automatically annuls conditions of an extant felling licence, nor does the Act plainly confer a general implied power on the Commission to withdraw a section 24 notice; where Parliament has required an express mechanism it has done so (for example section 25 appeals and Ministerial powers under other provisions).

Background and facts:

• The appellant, Arnold White Estates Ltd., held a felling licence granted 19 October 2018 with restocking conditions. The appellant felled woodland between November 2018 and February 2019 but did not comply with the restocking conditions.
• The Forestry Commission served a notice under section 24 of the Forestry Act 1967 on 28 July 2020 requiring compliance with the licence conditions. No appeal under section 25 was pursued.
• Outline planning permission existed from 2016 and full planning permission for access works was granted on 14 September 2020. The appellant sought confirmation that planning permission would supersede the restocking obligation and requested withdrawal of the section 24 notice.
• The Forestry Commission replied in a sequence of letters in January–April 2021 stating planning permission did not remove licence or notice duties and that it had no statutory power to amend or revoke the notice once served.

Procedural posture: The claim for judicial review was issued 18 June 2021. Permission to apply for judicial review had been refused below by Sir Ross Cranston (on the papers) and by Mrs Justice Thornton (renewed application). Permission to appeal to the Court of Appeal was granted on specified grounds by Lord Justice Lewison.

Nature of the claim and relief sought: The claimant sought judicial review of the Forestry Commission's communicated legal position (letter of 1 April 2021), orders quashing the decision, orders withdrawing the licence conditions and the section 24 notice, and declarations that planning permission displaced the licence and that the Forestry Commission could withdraw the notice.

Issues framed:

• Whether the claim was brought promptly and within the three-month CPR limit (delay/time-bar).
• Whether the Forestry Commission acted unlawfully in maintaining the section 24 notice, including (a) whether planning permission supersedes an extant felling licence and its conditions, and (b) whether an implied power exists to withdraw a section 24 notice.

Court's reasoning and conclusion: The court concluded the substantive decision subject to challenge was the issue of the section 24 notice on 28 July 2020 and its maintenance after the grant of planning permission; correspondence in 2021 merely restated that prior position. The claim was therefore out of time and lacked promptness: the appellant could and should have litigated earlier or pursued the statutory appeal under section 25. On the merits (addressed in case the court disagreed on delay), the court held the statutory scheme in the Forestry Act 1967 provides for appeals (section 25) and other express mechanisms; Parliament did not provide that a later planning permission automatically nullifies conditions on a previously acted-upon felling licence, and the court would not imply a broad power to withdraw section 24 notices. The Forestry Commission’s approach was held to be within the statutory scheme and not irrational.

Appeal dismissed. The court held the claim for judicial review was out of time because the real decision to challenge was the issue and maintenance of the section 24 notice in July 2020 (and the Forestry Commission's January 2021 letter made clear it would not withdraw the notice). Alternatively, on the merits the Forestry Commission acted lawfully: a later planning permission does not automatically annul conditions on an extant and implemented felling licence and there is no general implied power to withdraw a section 24 notice in the statutory scheme.

Appeal from the High Court (King's Bench Division, Planning Court: Mrs Justice Thornton), reported as [2021] EWHC 3047 (Admin). Permission to appeal was granted by Lord Justice Lewison; the Court of Appeal retained the case (neutral citation [2022] EWCA Civ 1304). Sir Ross Cranston had earlier refused permission on the papers on time grounds.