Arnold White Estates Ltd. v The Forestry Commission

Correspondence which merely confirms an earlier public-law decision does not restart the time for seeking judicial review. A claimant must challenge the substantive decision forming the real basis of its complaint, promptly and within the applicable three-month longstop.

A later planning permission does not automatically override an extant felling licence, its restocking conditions or a notice enforcing those conditions under section 24 of the Forestry Act 1967. The forestry and planning regimes are separate but co-ordinated schemes; neither is generally superior to the other. The exemption for felling immediately required by permitted development applies when the permission definitively requires the felling and no relevant planning approval remains outstanding.

The Forestry Commission granted the appellant a felling licence subject to restocking conditions. After the licensed felling had occurred without restocking, the Commission issued a notice under section 24 of the Forestry Act 1967. A subsequent planning permission authorised access and drainage works overlapping the affected land.

The appellant later sought withdrawal of the notice. The Commission maintained that planning permission did not displace the licence or notice and that it lacked a general power of withdrawal. The appellant sought judicial review of the position stated in correspondence during 2021.

Thornton J refused permission in [2021] EWHC 3047 (Admin), holding that the claim was late and unarguable. The appeal concerned whether the correspondence constituted a new reviewable decision and, alternatively, whether the later permission displaced the notice or required its withdrawal.

1. Appeal dismissed. The real grievance concerned the issue of the section 24 notice in July 2020 and its maintenance after planning permission was granted in September 2020. The later correspondence merely clarified and consistently repeated the Forestry Commission’s position. It did not embody new decision-making under the Forestry Act 1967 and could not artificially restart time for judicial review. The claim was neither prompt nor brought within three months, and no adequate explanation or application for an extension had been provided.

2. Even if a refusal to withdraw could constitute a new decision, the Commission’s letter of 15 January 2021 had already made that refusal definite and clear. Proceedings issued more than five months later were therefore still substantially late. The circumstances differed from the continuing and systematic illegality considered in R. (Fire Brigades Union) v South Yorkshire Fire and Rescue Authority [2018] 3 C.M.L.R. 27.

3. On the merits, if it had been necessary to decide them: section 9(4)(d) exempts felling immediately required by permitted development where the permission definitively requires the felling and no further relevant planning approval remains outstanding. Full permission, or outline permission combined with the necessary reserved-matters approvals, may qualify. Outline permission alone does not.

4. A later planning permission does not retrospectively annul an extant felling licence, its restocking conditions or a section 24 notice. Parliament expressly regulated the interaction of the forestry and planning regimes but did not provide for later permission to supersede obligations arising from licensed felling. The regimes are separate and co-ordinated. The Forestry Commission’s national statutory responsibilities are not wholly subsumed within a local planning authority’s development-control functions.

5. The court would not imply a general power to withdraw a section 24 notice. The detailed statutory scheme provides review and appeal mechanisms, expressly confers withdrawal powers in other contexts, and leaves the Commission discretion over whether to continue enforcement or prosecute. The reasoning concerning abatement notices in R. v Bristol City Council, ex parte Everett [1999] 1 W.L.R. 92 arose in a materially different statutory context involving a continuing duty of review. A limited residual discretion might nevertheless exist to correct a notice issued through factual error, misunderstanding, inaccuracy or ambiguity.

1. Court of Appeal (Civil Division): The appeal in [2022] EWCA Civ 1304 was dismissed. The court upheld the refusal of permission because the judicial review claim was substantially out of time. It also concluded, on an alternative basis, that the proposed grounds lacked merit.

2. High Court, Planning Court: Thornton J refused the renewed application for permission to seek judicial review in [2021] EWHC 3047 (Admin). She held that the claim was out of time and that all three grounds were unarguable.

3. High Court, paper consideration: Sir Ross Cranston, sitting as a deputy High Court judge, refused permission on the papers. He held that the claim was out of time and would also have refused it on its merits.