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

The Court of Appeal allowed the Secretary of State's appeal against Lieven J's quashing of her decision to uphold a restocking notice served under s.17A of the Forestry Act 1967. The court held that the statutory felling control regime in Part II of the Forestry Act 1967 is directed to forestry objectives (good forestry, maintenance of adequate reserves of growing trees and local amenity) and that planning merits or the broad public interest in delivery of development are not relevant considerations when deciding whether to serve, modify or uphold a s.17A restocking notice. The court adopted and applied the analysis in R (Arnold White Estates Limited) v Forestry Commission: the exemption in s.9(4)(d) only applies where felling is carried out after a full planning permission (or outline plus approved reserved matters) so the planning regime does not displace forestry controls. The court also rejected challenges based on procedural unfairness because the alleged briefing defect caused no substantial prejudice in relation to issues that were, in law, irrelevant.

This is an appeal from Lieven J's judgment in the Planning Court ([2024] EWHC 2024 (Admin)) quashing the Secretary of State's decision to uphold a restocking notice served under s.17A of the Forestry Act 1967 after trees were felled on land owned by Smar without a licence. Smar sought, by way of appeal under s.17B, modification of the restocking notice so that the 10-year maintenance obligation would cease if and when full planning permission was granted, or alternatively that replanting be required on alternative land so as not to frustrate an anticipated housing allocation in an emerging local plan. The committee appointed under s.27 upheld the restocking notice and the Secretary of State adopted the committee's reasoning.

The primary issues on judicial review and on appeal were (i) whether the prospect of allocation for development in a local plan or the public interest in delivery of development are relevant considerations when deciding an appeal under s.17B against a s.17A restocking notice; (ii) whether the Secretary of State should have considered modification of the notice to accommodate future planning permission or the use of alternative land for restocking; and (iii) whether briefing by a Forestry Commission official to the Minister rendered the decision unfair.

The Court of Appeal analysed the statutory framework of Part II of the Forestry Act 1967, the duties in s.1 (including promotion of adequate reserves of growing trees) and the limited, express points of interaction with the planning regime (notably s.9(4)(d) and s.15). Relying on and adopting the reasoning in Arnold White, the court held that planning merits and the general public interest in delivering development are not relevant considerations in determining s.17A/17B matters. The exemption in s.9(4)(d) applies only where felling is "immediately required" by a full permission (or outline plus approved reserved matters), i.e. where there is sufficient detail to identify which trees must be removed. The court concluded that Lieven J was wrong to treat the prospect of future planning permission, or the public interest in housing delivery, as a material factor that the Secretary of State was obliged to consider. The court also rejected the contention of procedural unfairness because any briefing defect did not cause substantial prejudice, given that Smar's points depended on matters irrelevant to s.17A appeals.

Relief sought: quashing of the Secretary of State's decision; on appeal the Secretary of State sought restoration of her decision. Outcome: appeal allowed and the High Court quashing set aside.

Appeal allowed. The Court of Appeal held that Part II of the Forestry Act 1967 is focused on forestry objectives and that planning merits or a broad public interest in delivery of development are not relevant considerations in appeals under s.17B against s.17A restocking notices. The court applied Arnold White, confirmed that the s.9(4)(d) exemption applies only where felling follows a full planning permission (or outline plus approved reserved matters), and concluded that the High Court was wrong to quash the Secretary of State's decision on the grounds that she failed to take into account the public interest in development or to consider the alternative land proposal on that basis. The complaint of procedural unfairness did not cause substantial prejudice and was rejected.

Appeal to the Court of Appeal from the High Court of Justice, King’s Bench Division, Planning Court (Lieven J) [2024] EWHC 2024 (Admin). The Court of Appeal considered and applied R (Arnold White Estates Limited) v Forestry Commission [2022] EWCA Civ 1304 and referred to the Court of Appeal's decision in R (Wickford Development Company Limited) v Secretary of State for Environment, Food and Rural Affairs [2025] EWCA Civ 882 on related issues.