Wickford Development Company Limited & Ors, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

A restocking notice under section 17A of the Forestry Act 1967 must be determined lawfully and proportionately, having regard to the statutory forestry purposes and all materially relevant circumstances. Planning permission does not automatically disapply or override the forestry regime, but its practical consequences may be material to an appeal against a restocking notice. The decision-maker may consider alternative land where that would produce greater silvicultural benefits; the statute imposes no exceptionality requirement. A landowner’s intention to create a garden in the future does not, by itself, establish that land was a garden when trees were felled. Where a material legal argument is left unanswered, fairness may require reasons, although relief may be refused if the statutory no-difference test is satisfied.

Three developers sought judicial review of decisions by the Secretary of State upholding restocking notices issued by the Forestry Commission under section 17A of the Forestry Act 1967.

Wickford challenged the failure to address an abuse-of-power argument, the interpretation of garden land, and the proportionality of requiring 242 trees to be planted. Witham Nelson challenged the treatment of existing planning permission, the refusal to determine the suitability of alternative land, and the refusal to address legal issues. Smar challenged the Committee’s approach to the planning regime, the failure to consider housing interests, the approach to alternative land, and procedural fairness.

1. Wickford. The Reference Committee declined to address the abuse-of-power argument because it considered it legal. The Minister’s decision did not show that the argument had been considered or explain why it was rejected. In the circumstances, fairness required the issue to be addressed and reasons to be given. Ground One was therefore made out.
2. The statutory test under section 9(2)(b) is whether, at the date of the alleged offence, the land was comprised in a garden. A bona fide intention to create a garden in the future is relevant only so far as it casts light on the land’s status at the relevant date. A disused garden must remain identifiable as a garden. The Committee’s conclusion that the site was woodland, rather than garden land, was open to it and involved no error of law.
3. The use of a standard restocking density of 1,100 stems per hectare was rational and within the Forestry Commission’s professional judgment. A failure to consider the number of trees felled might raise a legal issue in an extreme case, but that hypothetical situation did not arise here.
4. Although the failure to address Wickford’s argument was unlawful, the court declined to quash the decision under section 31(2A) of the Senior Courts Act 1981. It was highly likely that the argument would have been rejected. Section 17A contains no requirement for a prosecution, or for a prosecution still to be possible, before a restocking notice may be served.
5. Witham Nelson. The Court of Appeal’s decision in Arnold White did not establish that planning consequences were irrelevant whenever a restocking notice was considered. Planning permission was capable of being a material consideration. The Committee and Minister were entitled to uphold a notice despite the likely later removal of the trees, but there was no rational basis for refusing to consider alternative land which might produce materially greater silvicultural benefits. The Minister also failed to perform her own statutory duty by leaving the issue to the Forestry Commission. Grounds One and Two succeeded.
6. The Committee was wrong to decline to address legal issues on the basis that they belonged only in judicial review. It had to determine the appeal issues, obtain legal advice, or refer the matter to the Minister. Ground Three also succeeded.
7. Smar. The conclusion that varying the notice would undermine the planning regime was irrational. The proposed variation would have preserved the notice unless planning permission was granted. The Minister also failed to consider the public interest in housing delivery and the merits of alternative land, applying an unlawful exceptionality approach. Grounds One to Three succeeded. Ground Four was left undetermined.

The Witham Nelson and Smar decisions were unlawful and were to be remitted. Wickford’s claim succeeded on Ground One, but relief was refused under section 31(2A).

First-instance judicial review proceedings. No lower-court decision is stated in the judgment.