Factual and Procedural Background
This appeal concerns the Secretary of State for Environment, Food and Rural Affairs' consideration of an objection to a restocking notice served on the Appellant, Company A, under section 17A of the Forestry Act 1967. The restocking notice required Company A to restock land with trees after it appeared to the Forestry Commissioners that Company A had felled trees without a licence.
Company A objected on the basis that serving a restocking notice after a prosecution had been discontinued and the time limit for further criminal proceedings had expired was an abuse of power. The objection was referred to a reference committee, which reported that the legal issue was beyond its remit and rejected a proportionality objection regarding the number of trees to be planted. The Minister upheld the restocking notice.
Company A sought judicial review on two main grounds: failure by the Minister to address or give adequate reasons concerning the abuse of power objection, and failure to properly address the proportionality objection regarding the number of trees required to be planted. The judge dismissed the claim, accepting that the Minister had not properly dealt with the abuse of power objection but concluding that the argument was wrong and refusing to quash the notice. The judge also found the restocking requirement lawful and proportionate.
Company A appeals on two grounds: first, that the judge erred in denying a remedy under section 31(2A) of the Senior Courts Act 1981; second, that the judge failed to determine whether a reasonable relationship existed between the number of trees felled and the restocking requirement.
Legal Issues Presented
- Whether the service of a restocking notice after a prosecution had been discontinued and the time limit for further proceedings expired constitutes an abuse of power or is unlawful.
- Whether there must be, and was, a reasonable relationship between the number of trees felled and the requirement to restock under the restocking notice.
Arguments of the Parties
Appellant's Arguments
- The service of the restocking notice after the discontinuance of prosecution and expiry of the time limit for further proceedings was an unlawful abuse of power.
- The statutory intention behind section 17A required that an offence must have been committed before a restocking notice could be served.
- The restocking notice requiring 242 trees to be planted was grossly disproportionate to the number of trees felled (claimed as nine).
- The Minister failed to properly consider or give reasons for dismissing these objections.
- There was an assurance given by the Forestry Commissioners to the Regulatory Reform Committee that a restocking notice would not be served in such circumstances, and serving it now was a departure from that assurance.
Respondent's Arguments
- The discontinuance of criminal proceedings does not prevent the Forestry Commissioners from serving a restocking notice if it appears an offence has been committed.
- Any question of lawfulness of the notice is for judicial review, not for the reference committee or Minister to determine.
- The power to serve a restocking notice does not require replacement of the exact number of trees felled but to restock the land according to standard forestry practice.
- The standard restocking density of 1,100 stems per hectare (equating to 242 trees) is a lawful and proportionate exercise of judgment.
- The Minister was entitled to uphold the notice and the reference committee's report was appropriate in rejecting the proportionality objection.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Inland Revenue Commissioners ex p. MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 |
Requirement that assurances must be clear, unambiguous and devoid of relevant qualification to be binding. |
The court found the statements by the Forestry Commissioners did not amount to such an assurance. |
| R (Friends of the Earth Ltd. and another) v Secretary of State for Transport [2020] UKSC 52 |
Clarification of the nature of assurances and their legal effect. |
Supported the conclusion that the Commissioners' statements were not clear or unambiguous assurances. |
| R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] 4 CMLR 17 |
Limits on reliance on parliamentary materials and assurances for statutory interpretation. |
The court held the appellant’s reliance on parliamentary assurances was misplaced. |
| R (CPRE) [2018] 1 WLR 108 |
Duty to give reasons in special circumstances. |
Supported the finding that fairness may require reasons when objections are raised. |
| R (Cava Bien Ltd) v Milton Keynes Council [2022] RVR 37 |
Application of section 31(2A) of the Senior Courts Act 1981 concerning remedies. |
The judge applied this case in assessing whether to refuse a remedy, but the appellate court noted a preferable approach exists. |
| R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489 |
Clarification of the correct approach to applying section 31(2A) of the Senior Courts Act 1981. |
The court indicated that the approach in Cava Bien should not be followed in future cases. |
| Spath Holme [2001] 2 AC 349 |
Legal principles regarding assurances and their binding effect. |
The court distinguished the assurances in the present case from those considered in Spath Holme. |
Court's Reasoning and Analysis
The court analysed the powers under section 17A of the Forestry Act 1967, noting that the amended provision no longer requires a conviction before serving a restocking notice but only that it appears to the Forestry Commissioners that an offence has been committed. This legislative history supported the conclusion that the Commissioners lawfully served the restocking notice despite the discontinued prosecution and expiry of time limits for criminal proceedings.
The court considered the argument that the service of the restocking notice was an abuse of power based on an alleged assurance given by the Commissioners to the Regulatory Reform Committee. The court found no clear, unambiguous, or legally binding assurance existed that would prohibit serving a restocking notice in these circumstances.
Regarding procedural fairness, the court acknowledged that the reference committee and Minister should have considered the abuse of power objection and given reasons. However, the court concluded that the failure to do so was not material because the objection was legally unfounded and would have been rejected.
On the proportionality ground, the court held that the statutory power requires restocking or stocking the land, not replacing felled trees on a one-to-one basis. The use of standard industry practice for determining restocking density was a lawful exercise of judgment by the Commissioners, and the Minister was entitled to uphold the notice as proportionate.
The court also discussed the application of section 31(2A) of the Senior Courts Act 1981 regarding refusal of remedies and expressed a preference for analysing whether an error rendered a decision unlawful before applying the section, noting recent case law clarified this approach.
Holding and Implications
The court's final decision was to DISMISS THE APPEAL.
The holding affirms that the Forestry Commissioners have lawful power under the Forestry Act 1967, as amended, to serve restocking notices when it appears that an offence of unlawful felling has been committed, regardless of whether a prosecution has been discontinued or the time limit for criminal proceedings has expired. The court confirmed that alleged assurances to the contrary do not bind the Commissioners. Furthermore, the standard industry practice for determining restocking requirements is a lawful exercise of discretion and not disproportionate.
The direct effect is that the restocking notice against Company A stands. The decision does not establish new legal precedent but clarifies the application of section 17A and procedural expectations in such appeals.