Wickford Development Co Ltd v Secretary of State for the Environment and Rural Affairs

Environment – Felling licence – Restocking notice – Claimants felling trees without licences – Forestry Commission issuing restocking notices – Claimants’ appeals dismissed by defendant on recommendation of reference committee – Claimants applying for judicial review – Whether defendant failing to consider legal issues – Whether land subject to restocking notice “garden” not requiring felling licence – Whether refusal to consider restocking of alternative site irrational – Applications granted R (on the application of Wickford Development Co Ltd) v Secretary of State for the Environment and Rural Affairs R (on the application of Witham Nelson Investments Ltd) v Secretary of State for the Environment and Rural Affairs R (on the application of Smar Holdings Ltd) v Secretary of State for the Environment and Rural Affairs The claimants in three cases applied for judicial review of decisions of the defendant secretary of state upholding restocking notices (RSN) served by the Forestry Commission under section 17A of the Forestry Act 1967. The cases each concerned the same statutory powers and the same decision-making functions. In each case trees were felled on land owned by the claimants and a RSN was served. The claimants appealed to a reference committee which produced a report for the defendant who then made the decisions under challenge. The issues raised included: (i) in the first case, whether the failure to consider whether the restocking notice was an abuse of power was an error of law, where the Forestry Commission had discontinued a prosecution under section 17 of the 1967 Act; and whether the land was a “garden” within section 9(2)(b) of the 1967 Act which did not require a felling licence, as the landscaped vista might historically have been considered a garden, which was to be restored as multiple gardens for new dwellings; (ii) in the second claim, whether the decision was irrational where the reference committee found that it was inevitable that the trees would be removed because of planning permission for residential development on the site, and refused to consider the claimant’s offer to restock an alternative site; and whether the question of an alternative area of land had been unlawfully remitted to the Forestry Commission; and (iii) in the third claim, whether the reference committee had erred in law by stating that the “planning regime” would be undermined if the appeals were allowed, where the claimant had proposed to modify the restocking notice to allow development within 10 years if an emerging housing allocation was confirmed. Held: The applications were granted. (1) It was understandable that the reference committee was reluctant to deal with anything it thought was a “legal” argument as there was no legal representative, legal clerk or advisor on the committee. However, as a statutory body exercising public law powers, it was incumbent upon the committee to exercise those powers lawfully, in accordance with the normal principles of public law. If the committee considered it could not deal with a legal issue, it was necessary that the defendant then did so. The difficulty in this case was that the defendant’s decision did not show that she considered the abuse of process argument either. There was no statutory duty on the defendant to give reasons, whereas there was on the reference committee. There was no general common law duty to give reasons, but such a duty might arise in special circumstances. Either the statutory scheme required the committee to deal with the argument, and give reasons in its report to the defendant, or if they were not so required then fairness required the defendant to explain why she did not accept the argument. If the defendant either did not accept the committee’s reasons, or the committee did not deal with an issue, the defendant was under a duty to explain how she had dealt with it: R (on the application of CPRE Kent) v Dover District Council [2017] UKSC 79; [2018] EGLR 1 applied. (2) The test in section 9(2)(b) was that the land, at the date of the alleged offence, had to be comprised in a garden. The fact that there was a bona fide intention to create a garden in the future was only relevant to the extent that it cast light on whether the land was at the relevant date a garden. A disused garden might still be a garden, but it had to continue to be identifiable as a garden. What those characteristics were would largely be a matter of fact and judgment for the reference committee. Gardens could take very different forms, from standard domestic gardens with play equipment and flower beds, to large landscaped gardens with multiple trees and wooded areas. However, they still had to be identifiable in some way as gardens. To the degree that the decision in Rockall v Department for Environment, Food and Rural Affairs [2008] EWHC 2408 (Admin) suggested that the intention to create a garden was alone sufficient to meet the statutory test, it was plainly wrong. In the present case the committee carefully considered the evidence as to whether the land was currently a garden, and took the view it was not. That conclusion was plainly open to it. There was nothing in the committee’s reasons which suggested that it misapplied the statutory test, or failed to understand the limits on the relevance of the claimant’s future intentions to the matter it had to decide. (3) The town planning regime did not trump or nullify the requirements of the 1967 Act. The two statutory schemes were designed to operate together. It was open to the committee and the defendant to conclude that even 6.5 years growth could justify a RSN, particularly taking into account the potential precedent effect of finding that the holder of the licence could avoid the obligations under the licence by a subsequent grant of planning permission. However, the balance shifted once the potential for alternative land was taken into consideration. There was no rational silvicultural reason not to fully consider the offer of alternative land. It might be that the alternative land was not suitable for restocking but neither the defendant nor the committee ever got that far in the analysis. This was not a case where there was any expert opinion on the suitability of alternative land. It was rejected as a matter of principle, not expert judgment. In the second case, the defendant effectively had a choice, she could uphold a RSN which would prevent development for 6.5 years and remove the restocked trees after that period, or modify the RSN to allow it to apply to alternative land, thus allowing the development to come forward and deliver the greater silvicultural benefits. The public benefit in the delivery of housing was a material, although not a determinative, consideration. The defendant erred in law in not having regard to it. The reference committee had to deal with the issues raised on appeal, or potentially refer to the defendant. It could not decline to deal with an issue by saying it was a matter for judicial review, which was a remedy of last resort. Either the committee should have taken legal advice, or referred the matter to the defendant: R (on the application of Arnold White Estates Ltd) v Forestry Commission [2022] EWCA Civ 1304; [2022] PLSCS 163; [2023] PTSR 242 applied. (4) There was no sense in which amending the RSN would undermine the planning regime. It would not pre-empt the planning decision-making process. The claimant in the third case was only arguing that the RSN should be varied to allow the trees to be removed if planning permission was granted. It was not undermining the requirement in the RSN to restock in advance of any permission. The conclusion that the planning regime would be undermined was irrational. Although the reference to the planning regime was not central to the committee’s reasoning, its error was compounded by the defendant’s failure to consider the public interest in the delivery of housing and the effect of frustrating that delivery by upholding an unamended RSN. That was capable of being a material consideration. The claimant was proposing a mechanism that would keep the RSN in place and to be met, unless and until planning permission was granted; or that the RSN should be modified to refer to alternative land. The defendant’s failure to address those arguments was an error of law. Robin Green (instructed by Holmes & Hills LLP, of Braintree) appeared for the claimant in the first claim; Richard Banwell (instructed by Taylor Haldane Barlex Solictors LLP, of Chelmsford) appeared for the claimant in the second claim; Hugh Richards and Jessica Allen (instructed by Jury O’Shea LLP) appeared for the claimant in the third claim; Heather Sargent and Charles Bishop (instructed by the Government Legal Department) appeared for the defendant in the first claim; Zack Simons and Edward-Arash Abedian (instructed by the Government Legal Department) appeared for the defendant in the second and third claims. Eileen O’Grady, barrister Click here to read a transcript of these cases