Smar Holdings Limited, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

Felling controls under Part II of the Forestry Act 1967 pursue statutory forestry objectives and operate alongside, rather than beneath, the planning regime. Planning merits and the public interest in delivering a proposed development are generally irrelevant to a restocking notice or an appeal against it, unless they fall within the forestry, agricultural or local-amenity considerations identified by the Act. The same applies to the length of a maintenance period and the choice between the felled land and alternative land for restocking. The exemption for felling immediately required for development applies only where the relevant full planning permission or reserved-matters approval exists before the felling. An inappropriate briefing by a party’s official does not invalidate the decision without substantial prejudice.

Smar Holdings had unlawfully felled trees without a felling licence. The Forestry Commission served a restocking notice under section 17A of the Forestry Act 1967, requiring replanting and ten years’ maintenance. On appeal under section 17B, Smar argued that the notice should accommodate possible housing development on the site or require planting on alternative land.

Mrs Justice Lieven allowed Smar’s judicial review on grounds that the Secretary of State had failed to consider the public interest in housing delivery and had wrongly treated modification as undermining the planning regime. The Secretary of State appealed. The central issue was whether planning considerations, including an emerging development allocation and the public interest in development, were relevant to the section 17B appeal.

1. Appeal allowed. The judge should not have upheld grounds 2 and 3 of Smar’s claim. The overall planning merits of the proposed housing development and its delivery were irrelevant to the section 17B appeal.
2. Part II of the Forestry Act 1967 is a coherent statutory code directed to controlling felling and promoting forestry objectives. The Commission’s duties under section 1, including maintaining adequate reserves of growing trees, suffuse the exercise of its powers. The Act identifies the points at which planning and forestry regimes interact, particularly section 9(4)(d) and section 15. It creates no general hierarchy giving planning law precedence.
3. The exemption in section 9(4)(d) applies only to felling immediately required for development authorised by a full planning permission, or by an outline permission together with approval of reserved matters, existing before the felling. A later permission does not nullify the consequences of earlier licensed or unlawful felling, or the associated restocking and maintenance requirements.
4. Planning considerations outside the statutory forestry, agricultural and local-amenity objectives, including the merits of development, a public interest in its delivery, the prospect of a future permission, or an allocation in an adopted or emerging plan, are irrelevant to a section 17A notice and any appeal against it. They are also irrelevant to the maintenance period and to whether restocking should occur on alternative land.
5. The committee was entitled to reject Smar’s alternative-land proposal because there was little or no evidence that the proposed land was suitable and similar to the felled area. The proposed automatic termination of maintenance upon a future permission was also unsound because it would pre-empt the Commission’s future judgment.
6. The committee secretary’s briefing, prepared by a Forestry Commission official who had acted as secretary, was plainly inappropriate. Nevertheless, the error caused no substantial prejudice because Smar’s arguments depended on planning merits which were legally irrelevant. Ground 4 therefore failed. The Respondent’s Notice was dismissed.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 1041: allowed the Secretary of State’s appeal and dismissed Smar’s Respondent’s Notice.
• High Court of Justice, King’s Bench Division, Planning Court — [2024] EWHC 2024 (Admin): allowed Smar’s judicial review on grounds concerning planning considerations and quashed the Secretary of State’s decision.