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In Arnold White Estates Ltd. v. Forestry Commission [2022] EWCA Civ 1304 (judgment 6.10.22), the Court of Appeal (Sir Keith Lindblom SPT, Holroyde and Coulson LJJ) handed down judgment dismissing an appeal by Arnold White Estates from Thornton J. seeking to challenge the refusal of the Forestry Commission to consider withdrawing an enforcement notice to require compliance with tree replanting and maintenance for a period of 10 years notwithstanding the later grant of reserved matters approval which might otherwise have qualified under s. 9(4)(d) of the Forestry Act 1967 to exempt the landowner from the need to obtain a licence in the first place. The Senior President (with whom the other members of the Court agreed) considered the relationship of the provisions relating to felling licences under s. 9 of the Forestry Act 1967 and the planning code and held that, in the context where a felling licence had been granted in 2018 following the grant of outline permission in 2016 for development of the area requiring the replanting and maintenance of trees for a period of 10 years and was then enforced against, the requirements remained in force despite the subsequent grant of planning permission and reserved matters notwithstanding that the felling licence requirement prevented the development from being undertaken for 10 years.
The appeal was primarily dismissed on grounds of delay - the Senior President held that in such a case the notice, which was the real target of the challenge in his judgment, should have been challenged within 3 months (and in any event promptly) of the service of the notice: see [48]-[59] of his judgment. The claim that the refusal to consider the exercise of an implied power to review following the grant of a qualifying permission was a continuing state of unlawfulness was rejected. However, Sir Keith Lindblom also considered (obiter) the substantive issues in detail. He held, rejecting the argument that the removal and replanting of trees would be (and in fact were) considered within a planning application:
“71. There is no inherent illogicality in the statutory provisions for felling licences as the Forestry Commission understands them. The land use planning system and the legislation for forestry comprise separate but co-ordinated statutory schemes. They are among several regulatory regimes which can bear on the progress of development on a site. They do not belong to a legislative hierarchy in which the planning system ranks above, and takes precedence over, the legislation for forestry. Parliament has addressed the interaction between them where it has seen the need to do so, in particular in sections 9(4)(d) and 15 of the 1967 Act. Far from subordinating the statutory regime for felling licences to that for planning permission, the enactment of that regime, which explicitly acknowledges the planning legislation, demonstrates the synergy between them. The duties of the Forestry Commission, set out in section 1 of the 1967 Act, require it to take a national view of forestry, to consider national supplies of timber, and to maintain adequate national reserves of growing trees. They go beyond the role of local planning authorities in discharging their development control functions. They involve considerations which would not necessarily be taken into account by those authorities when determining applications for planning permission. The two statutory schemes are designed to operate together where proposals for development engage them both. And the respective roles of the Forestry Commission and local planning authorities undoubtedly have much in common. But the remit and responsibilities of the latter cannot be said wholly to subsume those of the former.
72. In this case it was clearly the view of the Forestry Commission when it issued the section 24 notice that it would not be consistent with good forestry and thus in the public interest for Arnold White Estates, having had the benefit of the felling authorised in the felling licence granted on 19 October 2018, to be able to avoid the burden of the restocking conditions which had been imposed on that licence as indispensable requirements if the proposed felling was to proceed. Otherwise, in the exercise of its statutory power to do so, the Forestry Commission would not have decided to issue a formal notice to enforce compliance with those conditions. Nor can it be said that the Forestry Commission was doing anything other than lawfully exercising its power to issue that notice, in accordance with its statutory purpose under section 1 of the 1967 Act.
73. I do not accept that it would necessarily be, as Mr Elvin submitted, an absurd result of a section 24 notice being issued and maintained that a grant of planning permission subsequent to the deadline given for compliance in the notice might be rendered difficult or impossible to implement by the enforcement of restocking conditions on a prior felling licence. This is not the consequence of an unfortunate quirk in the relationship between the statutory schemes for forestry and planning. In this case it was a result of the relevant statutory provisions operating on the particular sequence of events that unfolded. When it applied for a felling licence, Arnold White Estates was, it seems, content to accede to the restocking conditions being imposed, and no request was later made for a review of the conditions under section 16. It applied for a felling licence when it did, and carried out the licensed felling when it did, in the absence of reserved matters approvals, because it wanted to sell “cleared plots” which would be more attractive to purchasers. Proceeding in that way was a commercial decision. But it had legal consequences.”
The Court also rejected the existence of an implied power to withdraw an enforcement notice at least in the context of a change in circumstances resulting in the grant of a planning permission which (in planning terms) authorised the removal of trees and planting of others: see [75]-[86] of the judgment.
The judgement can be found here.
David Elvin KC acted for the Appellant.
Zack Simons and Anjoli Foster acted for the Respondent.
