Planning Merits Held Irrelevant in Forestry Restocking Appeals
Smar Holdings Ltd v Secretary of State for Environment, Food and Rural Affairs
([2025] EWCA Civ 1041)

Introduction

This Court of Appeal decision addresses the collision course between two specialist statutory regimes: the Forestry Act 1967 (“FA 1967”), which polices the felling of growing trees, and the Town and Country Planning Act 1990 (“TCPA 1990”), which governs land-use planning. The underlying dispute concerned Smar Holdings Ltd (“Smar”), owner of land near Bristol, who had felled trees without the required felling licence and was served with a restocking notice (“RSN”) by the Forestry Commission. On appeal, Smar argued that the future public interest in housing development and the site’s prospective allocation in the local plan should have been weighed when the Secretary of State decided to uphold that RSN. The High Court accepted Smar’s arguments, but the Court of Appeal has now reversed that finding, holding that:

When determining appeals against restocking notices under s.17B FA 1967, considerations relating to the planning merits of potential or permitted development—including any general public interest in the delivery of housing—are legally irrelevant. Only forestry-related considerations identified in the 1967 Act may be taken into account.

This ruling re-draws the boundary between forestry enforcement and planning control, confirming the self-contained nature of each statutory code and eliminating the scope for “mixed” public-interest arguments to defeat forestry objectives.

Summary of the Judgment

The Court (Green LJ giving the leading judgment, with Falk LJ and Lewis LJ concurring) allowed the Secretary of State’s appeal and reinstated the RSN. Key points were:

• The focus of Part II FA 1967 is the promotion of forestry interests, including adequate reserves of growing trees and good forestry practice; those interests are unqualified by planning needs.
• Parliament has consciously provided only two statutory “interface” points between the regimes— s.9(4)(d) (exemption for felling after full planning permission) and s.15 (cross-referral with Tree Preservation Orders). Outside those explicit gateways, the regimes operate in parallel, with no hierarchy.
• Accordingly, the Secretary of State (on appeal) was entitled—indeed obliged—to ignore the prospective local-plan allocation and claimed housing benefits when deciding whether to uphold or modify the RSN.
• The High Court had erred in concluding that “public interest in housing delivery” could and should sometimes be considered in RSN appeals.
• The Court also rejected Smar’s subsidiary arguments that (i) the RSN should be modified so its maintenance duty would fall away upon any future grant of full planning permission, and (ii) the restocking could be transposed to different land. Both contentions were incompatible with the statutory purposes and discretion framework.
• An ancillary complaint about procedural unfairness (the committee secretary being an employee of the Forestry Commission) was dismissed because no material prejudice was demonstrated.

Analysis

A. Precedents Cited

• R (Arnold White Estates) v Forestry Commission [2022] EWCA Civ 1304 – the foundation stone. Held that a subsequent grant of full planning permission does not cut across pre-existing forestry licence conditions or enforcement notices. Smar now extends that logic to prospective permissions and policy aspirations.
• R (Grundy) v Halton Magistrates [2003] EWHC 272 (Admin) – confirms the FA 1967’s role in safeguarding the nation’s natural heritage.
• Friends of the Earth v Secretary of State for Transport [2020] UKSC 52 – cited below-the-line for the nature of “material considerations”, but ultimately distinguished.
• George v Secretary of State for the Environment (1977) LGR 689 – on procedural fairness and “no technical breach” doctrine.

B. Legal Reasoning

1. Statutory Purpose – The Court undertook a detailed exegesis of FA 1967 ss.1, 9, 10, 12, 17A–17C and 27, emphasising Parliament’s clear intention that felling control is primarily about re-establishing lost canopy and maintaining woodland cover, dovetailing with modern Net-Zero and biodiversity commitments.
2. Express Interfaces Only – Parliament chose to create only limited cross-over points with the planning code (ss.9(4)(d) & 15). The absence of any additional textual link prohibits importing general planning considerations into forestry decisions.
3. No Legislative Hierarchy – Echoing Arnold White, the judgment reiterates that neither regime is subordinate to the other; each must be applied according to its own purposes and statutory language, even if that occasionally produces “delay” or “frustration” for development.
4. Discretion and Relevance – While the Forestry Commission retains a pragmatic discretion in whether to enforce restocking, once it chooses to do so the statutory factors are closed: good forestry, agriculture, district amenity, and adequate tree reserves. The prospect of future development is not one of those factors.
5. Irrationality Allegations Dismissed – The Court found that concluding Smar’s requested modification would undermine effective regulation was rational and in line with Arnold White, because it would erode the deterrent against “jump-the-gun” felling.

C. Impact of the Decision

The ruling will resonate across forestry, planning and environmental practice:

• Developers: Cannot rely on “public benefit” arguments about future schemes when resisting RSNs. The safest course remains to secure full planning permission before any tree felling; otherwise restocking and up-to-10-year maintenance obligations may bite regardless of later consents.
• Forestry Commission: Gains firmer ground to insist on replanting, confident that planning-led arguments will not derail enforcement.
• Local Planning Authorities: Must factor in the possibility that felled-then-restocked areas may be subject to ongoing forestry controls when assessing applications; any assumption that restocked trees can simply be removed after permission is now misconceived.
• Environmental Policy: Strengthens delivery of woodland expansion targets under the Environment Act 2021 and the Net-Zero agenda by closing a potential loophole.
• Litigation Strategy: Narrows the grounds on which RSNs may be appealed or judicially reviewed – arguments must align with forestry, not planning, considerations.

Complex Concepts Simplified

• Felling Licence – Official permission from the Forestry Commission to cut down growing trees. Unnecessary only if a statutory exemption (s.9(2)–(4)) applies.
• Restocking Notice (RSN) – A statutory notice (s.17A FA 1967) served after unlicensed felling, obliging the landowner to replant trees and maintain them (up to 10 years).
• Section 9(4)(d) Exemption – Allows tree felling immediately required to implement an already-granted full planning permission (or outline + reserved matters), bypassing the need for a felling licence.
• Outline vs Full Planning Permission – Outline establishes the principle of development but leaves details (layout, landscaping, etc.) to “reserved matters”. Only once those details are approved does the permission become “full”; only then can s.9(4)(d) bite.
• Conservancy – Administrative area designated by the Forestry Commission; each has an advisory committee and a panel for appointing RSN appeal committees.
• Material Consideration (Planning) – Any factor relating to the use or development of land relevant to a planning decision; breadth contrasted with the narrow forestry factors.

Conclusion

Smar Holdings crystallises a crisp rule of law: Forestry enforcement decisions must remain tightly tethered to forestry purposes; planning merits—even compelling ones such as housing need—stand outside the decision-maker’s jurisdiction under the Forestry Act 1967.

By rejecting the High Court’s more expansive approach, the Court of Appeal has insulated the restocking regime from indirect planning pressures, fortified environmental objectives, and provided developers with a clear procedural roadmap: fell only after detailed consent if you wish to avoid long-term restocking duties. Looking ahead, the decision will likely reduce litigation overlap between forestry and planning and accelerate the United Kingdom’s trajectory towards its woodland-cover and Net-Zero targets.