“Restocking Without Conviction” – Wickford v Secretary of State for Environment, Food & Rural Affairs [2025] EWCA Civ 882

Introduction

The Court of Appeal’s judgment in Wickford Development Company Ltd (R on the application of) v Secretary of State for Environment, Food & Rural Affairs reshapes two neighbouring territories of public law and forestry control:

• Forestry enforcement: When and how the Forestry Commissioners may issue a “restocking notice” under s.17A Forestry Act 1967 after unlawful felling of trees.
• Judicial review remedies: Whether every procedural or reasoning error by the decision-maker must be analysed under the “highly likely” gateway in s.31(2A) Senior Courts Act 1981.

Wickford, a property developer, felled trees without a felling licence. Criminal proceedings were commenced but later discontinued and, by reason of the statutory two-year long-stop, could never be revived. Undeterred, the Forestry Commissioners served a restocking notice requiring the planting of 242 saplings. Wickford objected, alleging (i) abuse of power because no prosecution survived and (ii) disproportionate planting numbers. Both objections were rejected by the Minister. On judicial review Lieven J upheld the refusal to withdraw the notice; Wickford appealed.

Summary of the Judgment

The Court of Appeal (Bean LJ giving the lead judgment, Falk LJ and Holgate LJ concurring) dismissed both grounds of appeal. The Court held that:

1. Section 17A expressly allows a restocking notice whenever it appears that an offence has been committed; neither a conviction, nor the possibility of prosecution, is a condition precedent.
2. Any alleged assurances to Parliament in 2006 (when s.17A was amended) were too vague to create a legitimate expectation constraining the Commissioners.
3. The failure of the reference committee or Minister to grapple with Wickford’s “abuse of power” argument did not vitiate the decision because, in law, the argument was hopeless. The error was non-material; it therefore rendered the decision lawful without recourse to s.31(2A).
4. Citing R (Bradbury) v BBNPA, the Court deprecated the “own-assessment” approach in Cava Bien; courts should first ask whether the error was material before invoking s.31(2A).
5. The requirement to plant 1,100 stems per hectare (242 saplings on 0.22 ha) was not irrational or disproportionate; the statutory purpose is to restock land, not replace felled trees one-for-one.

Analysis

1. Precedents Cited

• R (Campaign to Protect Rural England) v Dover DC [2018] 1 WLR 108 – on common-law duty to give reasons.
• R (Heathrow Hub) v SoS for Transport [2020] 4 CMLR 17 – limits on use of Parliamentary material (Pepper v Hart).
• R v IRC ex p MFK [1990] 1 WLR 1545 – the “clear, unambiguous, and devoid of qualification” test for legitimate expectation.
• R (Friends of the Earth) v SoS for Transport [2020] UKSC 52 – modern restatement of legitimate expectation principles.
• Spath Holme [2001] 2 AC 349 – Parliamentary assurances and statutory construction.
• R (Cava Bien Ltd) v Milton Keynes BC [2022] RVR 37 – (now disapproved) approach to s.31(2A).
• R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489 – correct approach to s.31(2A) and “materiality”.

The Court relied most heavily on Bradbury to realign lower-court practice following Cava Bien, and on Heathrow Hub / MFK / Friends of the Earth to dismantle Wickford’s legitimate-expectation claim.

2. Legal Reasoning

2.1 Scope of s.17A Forestry Act 1967

The statutory language, inserted by the Regulatory Reform (Forestry) Order 2006, is unambiguous: a notice may issue if it “appears” that an offence has been committed. The Court tracked the legislative history, noting that Parliament deliberately removed the conviction prerequisite. Consequently:

• No conviction is required.
• Service is not barred merely because a prosecution was discontinued or time-barred.
• The decision threshold is administrative (Commissioners’ reasonable belief) rather than judicial (proof beyond reasonable doubt).

2.2 Alleged Assurances to Parliament

Wickford relied on extracts from the House of Commons Regulatory Reform Committee indicating that restocking would not be used where “a conviction was unlikely or impossible”. The Court found:

• Wickford produced no primary source for the ‘assurance’; only committee commentary.
• Even if the statements were admissible, they were broad, aspirational and heavily qualified – far from the MFK test of clarity.
• The committee itself anticipated use of restocking in cases where prosecution was “impossible”.
• No legitimate expectation arose; therefore no abuse of power.

2.3 Duty to Consider Objections vs Materiality of Error

Yes, the reference committee and Minister should have addressed Wickford’s “abuse” argument; failure to do so was an error. But two further questions follow:

1. Would the argument have succeeded? No – because s.17A plainly empowers notices absent prosecution.
2. Did the error affect the outcome? No – the only possible lawful decision was to uphold the notice.

Hence the error was immaterial and did not make the decision unlawful. The Court counselled caution against reflexive use of the “section 31(2A)” saving provision; one must first examine whether the error is genuinely material to outcome. Bradbury, not Cava Bien, is now the lodestar.

2.4 Proportionality of the 242 Saplings

Section 17A is aimed at re-establishing woodland canopy, not compensating by headcount. Forestry practice assumes mortality of young trees and the need for density to achieve eventual canopy cover. The 1,100 stems/ha guideline represents accepted silviculture. The Court approved the Commissioners’ “standard practice” metric as rational and within discretionary limits.

3. Impact of the Judgment

The decision has at least four forward-looking effects:

1. Forestry enforcement certainty. Landowners can no longer argue that expiry or withdrawal of criminal proceedings immunises them from restocking obligations.
2. Legitimate expectation threshold reaffirmed. Vague ministerial or departmental statements to parliamentary committees rarely bind future statutory powers.
3. Judicial review methodology clarified. High Court and tribunal judges should treat procedural lapses as potentially immaterial without defaulting to s.31(2A). The disapproval of Cava Bien is explicit.
4. Proportionality yardstick for restocking. The Court endorses industry stocking densities, signalling that disputes over “one-for-one” replacement are unlikely to prosper unless truly excessive.

Complex Concepts Simplified

Conclusion

The Court of Appeal’s decision in Wickford cements two pivotal propositions:

1. The Forestry Commissioners’ power to compel restocking is not tethered to criminal conviction or prosecutorial timelines; administrative determination suffices.
2. Procedural omissions by decision-makers are not automatically fatal; courts will disregard them where the underlying objection is unsustainable in law, without the need to invoke s.31(2A).

Together, these principles streamline forestry regulation and recalibrate judicial-review remedies. Developers and landowners must now factor in the persistent reach of restocking notices, while public bodies should note the Court’s strict approach to identifying and disregarding immaterial errors. Wickford thereby stands as a dual precedent – one firmly rooted in environmental stewardship, the other pruning the over-growth of technical public-law challenges.