Wickford Development Company Limited v Secretary of State for Environment, Food and Rural Affairs

A restocking notice under section 17A of the Forestry Act 1967 may be served where it appears to the appropriate forestry authority that an offence has been committed. A prior conviction, a continuing prosecution, or the possibility of further criminal proceedings is not required.

The statutory power is directed to restocking land, rather than merely replacing the number of trees felled. The authority may therefore use a rational standard stocking density aimed at restoring woodland canopy. An objection must be considered by the reference committee and Minister, but failure to address a purely legal objection is immaterial where the objection could not succeed as a matter of law.

The Forestry Commissioners served Wickford with a restocking notice under section 17A of the Forestry Act 1967, requiring the planting of 242 trees after alleged unauthorised felling. A prosecution under section 17 had been discontinued, and the statutory time limit for further proceedings had expired.

Wickford objected that the notice was an unlawful abuse of power because there had been no conviction and relied on statements recorded in a House of Commons committee report. It also argued that requiring 242 trees when only about nine had been felled was disproportionate. The reference committee did not determine the first objection but rejected the proportionality objection. The Minister upheld the notice. Lieven J dismissed the judicial review claim, finding the first error immaterial and the stocking density lawful: [2024] EWHC 2034 (Admin). The central issues were whether the notice was lawful and whether its stocking requirement had to bear a numerical relationship to the trees felled.

1. Appeal dismissed. The Commissioners had power under section 17A of the Forestry Act 1967 to serve a restocking notice where it appeared to them that an offence had been committed. The absence of a conviction, discontinuance of a prosecution and expiry of the time limit for further proceedings did not remove that power.
2. The statutory history confirmed that Parliament had deliberately replaced the former conviction requirement with the “where it appears” test. The Commissioners therefore had to have a lawful evidential basis for their view that the offence had been committed, but a successful prosecution was not a precondition.
3. The alleged assurance recorded in the Regulatory Reform Committee report did not restrict the statutory power. The statements were general and did not amount to a clear, unambiguous and unqualified assurance that no notice would be served after a discontinued prosecution or expiry of the criminal time limit. The committee report also recognised that notices could be used where prosecution would be impossible.
4. The reference committee and Minister should have considered and dealt with the legal objection under section 17B. Their failure was ultimately immaterial. The objection could not succeed as a matter of law, and the court’s conclusion that the notice was lawful meant that the error could not affect the Minister’s decision.
5. The court observed that not every error needed to be analysed under section 31(2A) of the Senior Courts Act 1981. The judge’s approach to R (Cava Bien Ltd) v Milton Keynes Council was incorrect in treating that provision as requiring the court to conduct its own assessment. Following R (Bradbury) v Awdurdod Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority), the approach in Cava Bien should not be followed.
6. Section 17A requires land to be restocked or stocked, not merely for each felled tree to be replaced. The Minister was entitled to accept the standard industry density of 1,100 stems per hectare as a rational means of securing sufficient surviving mature trees to restore the woodland canopy. Grounds 1 and 2 were dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the lawfulness of the restocking notice and held that the failures to consider the first objection were immaterial.
• High Court, King’s Bench Division, Administrative Court: Lieven J dismissed the judicial review claim, while finding ground 1 made out, declining relief under section 31(2A) of the Senior Courts Act 1981, and upholding the use of standard restocking practice: [2024] EWHC 2034 (Admin).