Court of Appeal allows appeal considering the interaction between the planning and forestry regimes

The Court of Appeal has allowed the Secretary of State’s appeal in R (Smar Holdings Limited) v SoS Environment, Food and Rural Affairs [2025] EWCA Civ 1041.

This is only the second case where the appellate courts have considered the interaction between the planning and forestry regimes, the first being the decision in R (Arnold White Estates Limited) v Forestry Commission [2022] EWCA Civ 1304. 

Background to the appeal

In Smar, the case concerned land near Bristol situated within the Avon Green Belt where a number of trees were unlawfully felled without a felling licence. The Forestry Commission issued a restocking notice requiring the landowner, Smar, to replant the land with trees maintained against damage for 10 years. Smar appeal against the restocking notice to the Secretary of State under s.17B of the Forestry Act 1967, arguing, among other matters, that the notice would undermine the intention of Bristol City Council to include the land as part of a strategic allocation in its local plan review. This was despite the fact that the land had no planning permission and was not allocated for any development. The Secretary of State decided to uphold the restocking notice following the s.17B appeal.

Lieven J in the High Court, however, held that the broad public interest in the delivery of housing could be a material consideration in the exercise of the powers relating to restocking notices, and the Secretary of State had failed to take that public interest into account in this case. This point was determinative to the outcome of the case, which resulted in the High Court quashing the Secretary of State’s decision.

The Court of Appeal’s decision

The Court of Appeal, in a judgment by Holgate LJ (with whom Lewis LJ and Falk LJ agreed) has now overturned the High Court’s decision, finding that the overall merits of a proposed development, or a public interest in its delivery, are irrelevant to the exercise of the power to serve a restocking notice and the ambit of any appeal against such a notice: [112]

In summary, the Court of Appeal decided:

1. Only the interests of good forestry (and agriculture and local amenity) and the duties in s.1 of the Forestry Act 1967 are relevant to the exercise of felling controls: [102]-[104], [114].
2. The planning merits of a proposed development (other than matters falling within (1) above) are irrelevant to the exercise of felling controls under Part II of the Forestry Act 1967, irrespective of whether the scheme has been granted planning permission or is the subject of an allocation in an adopted or an emerging development plan document: [110], [112]-[114].
3. The exemption from felling control in s.9(4)(d) of the Forestry Act only applies to felling which takes place after, not before, the grant of a full planning permission or the approval of reserved matters: [108], [114].
4. In exercising felling controls under Part II of the Forestry Act 1967 the decision-maker is not required to take into account the potential for development on the felled land, the prospect of s.9(4)(d) applying in the future or the implications of that prospect: [112]-[114].

The Court of Appeal also dismissed Smar’s cross appeal, finding that any procedural failings arising from the briefing materials given to the Secretary of State did not vitiate the decision on the s.17B appeal: [133].

In obiter comments, the Court of Appeal also addressed Lieven J’s findings on Smar’s other grounds of judicial review before the High Court: [116]-[126]. In particular, the Court of Appeal stated that it had not been irrational for the Secretary of State to conclude that modifying the restocking notice to accommodate a future grant of planning permission (as proposed by Smar) would undermine the planning regime: [123]. Further, the Secretary of State had been entitled to reject Smar’s proposal to amend the restocking notice so as to require planting on an alternative area of land instead of the felled land: [125].

This appeal relates to one of three applications for judicial review against decisions by the Secretary of State to uphold restocking notices. Lieven J heard those applications consecutively and gave a single judgment dealing with all three cases ([2024] EWHC 2034 (Admin)). Earlier this month, the Court of Appeal dismissed an appeal by the claimant in R (Wickford Development Company Ltd) v SoS for Environment, Food and Rural Affairs [2025] EWCA Civ 882 – a summary of the case is available here.

Zack Simons KC and Edward-Arash Abedian acted for the successful Secretary of State for Environment, Food and Rural Affairs in Smar, instructed by the Government Legal Department.

Heather Sargent and Charles Bishop acted for the successful Secretary of State for Environment, Food and Rural Affairs in Wickford, instructed by the Government Legal Department.