Smar Holdings Ltd, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

Factual and Procedural Background

This appeal concerns judicial review challenges to decisions by the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") upholding restocking notices served under section 17A of the Forestry Act 1967 ("FA 1967"). These notices were issued following unlawful felling of trees without the required felling licences. The core legal question is whether planning considerations, including the future prospect of land allocation for development or the public interest in such development, are relevant in appeals against restocking notices under section 17B of the FA 1967.

The cases arise from three separate judicial reviews heard by Lieven J, who dismissed one (Wickford Development Company Limited) and allowed two others brought by Witham Nelson Investments Limited ("WN") and Smar Holdings Limited ("Smar"). The present appeal concerns the Secretary of State’s challenge to the High Court's decision in Smar’s case, with the Secretary of State seeking to clarify the relevance of planning considerations in forestry enforcement appeals.

The factual background includes unlawful felling of trees by Smar on land at Keynsham Garden Centre, leading to a restocking notice requiring replanting and maintenance for ten years, and a similar situation for WN, who had obtained outline and later full planning permission for development after unlawful tree felling. Appeals against restocking notices were heard by committees which recommended upholding the notices, sometimes with modifications, and the Secretary of State accepted those recommendations. The High Court quashed the Secretary of State’s decisions in the WN and Smar cases on certain grounds, including the failure to consider the public interest in development and alternative restocking sites.

Legal Issues Presented

1. Whether the future prospect of land being allocated for development or granted planning permission, or the public interest in such development, are relevant considerations in appeals against restocking notices under section 17B of the FA 1967.
2. Whether the Secretary of State or the appeals committee must consider modifications to restocking notices to accommodate future planning permissions or to require replanting on alternative land.
3. Whether the planning regime and the forestry licensing regime operate in a hierarchical relationship or as separate but coordinated statutory schemes.
4. Whether procedural fairness was compromised by the involvement of a Forestry Commission official acting as secretary to the appeals committee and briefing the Secretary of State.

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• There is no general public interest in promoting housing development that should be taken into account in forestry enforcement appeals.
• The planning system and the forestry licensing regime are distinct statutory schemes without legislative hierarchy, and planning considerations are irrelevant to the exercise of powers under the FA 1967.
• The exemption from felling licence requirements under section 9(4)(d) of the FA 1967 applies only after full planning permission is granted, not before.
• The High Court erred in holding that the public interest in development must be considered in appeals against restocking notices.
• The threshold for irrationality in decision-making was not met in this case.
• The Secretary of State did not err in upholding the restocking notices without modification.

Respondent's Arguments (Smar Holdings Limited)

• The public interest in the delivery of housing development is a relevant consideration in appeals against restocking notices.
• The restocking notice should be modified to accommodate future grants of planning permission by suspending maintenance obligations unless and until full permission is granted.
• The restocking obligation should alternatively be fulfilled on alternative land to avoid frustrating development.
• The appeals committee and Secretary of State failed to properly consider these points, focusing solely on silvicultural grounds.
• The involvement of a Forestry Commission official as secretary to the committee and in briefing the Secretary of State was procedurally unfair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Arnold White Estates Limited) v Forestry Commission [2022] EWCA Civ 1304; [2023] PTSR 242	Clarification of the interaction between forestry licensing regime and planning permissions, particularly that the exemption in section 9(4)(d) applies only after full planning permission is granted; no hierarchy between planning and forestry regimes.	The court adopted the analysis that planning permissions do not override restocking conditions attached to felling licences or enforcement notices; the regimes operate separately but in coordination.
R (Friends of the Earth Limited) v Secretary of State for Transport [2020] UKSC 52; [2021] PTSR 190	Material considerations in public law decision-making, including the public interest.	Referenced in assessing whether the public interest in housing delivery is a relevant consideration in forestry enforcement appeals.
R (Wright) v Forest of Dean District Council [2019] UKSC 53; [2019] 1 WLR 6562	Definition and scope of material planning considerations.	Used to contrast the broad ambit of planning considerations with the narrower forestry considerations relevant under the FA 1967.
George v Secretary of State for the Environment (1977) LGR 689	Requirement of substantial prejudice to establish breach of natural justice.	Applied in relation to procedural fairness concerns about the secretary to the committee's role.
R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726	Normal practice of ministerial decision-making assisted by departmental officials’ briefings.	Distinguished from the improper involvement of a Forestry Commission official acting as secretary to the committee and briefing the Secretary of State.

Court's Reasoning and Analysis

The court began by reaffirming the legal framework established in R (Arnold White Estates Limited) v Forestry Commission, confirming that the forestry licensing regime and the planning regime are separate but coordinated statutory schemes. The exemption from the requirement for a felling licence under section 9(4)(d) of the FA 1967 applies only to felling immediately required for development authorised by a full planning permission or outline permission with approved reserved matters, not before such permissions are granted.

The court analysed the statutory provisions governing restocking notices under sections 17A and 17B of the FA 1967, noting that the Commission's powers and duties focus on forestry interests, including good forestry practice, agriculture, and local amenities. The legislation does not include planning considerations or a public interest in development as relevant factors in the exercise of these powers.

The court rejected the argument that planning merits or the public interest in development are material considerations in appeals against restocking notices. It explained that the planning system and the forestry regime operate independently, with specific points of interaction legislated by Parliament, and no legislative hierarchy exists between them. The court emphasised that the Commission and appeals committees must focus on forestry objectives and statutory duties, not broader planning merits.

Regarding the Secretary of State’s discretion, the court acknowledged that changes in circumstances, including the grant of planning permission, may be taken into account but only insofar as compatible with the statutory duties under the FA 1967. The court held that the public interest in development and the prospect of planning permission do not constitute relevant considerations in determining appeals against restocking notices.

The court also addressed the proposed modification to the restocking notice suggested by the respondent (Smar), which sought to suspend maintenance obligations until full planning permission is granted. The court found this proposal unsound because it would undermine the effective regulation of tree felling and improperly interfere with the Commission’s discretion in enforcing forestry objectives. It further rejected the notion that planning considerations should override forestry controls.

On the issue of alternative land for restocking, the court found that the appeals committee was entitled to reject the proposal due to insufficient evidence of the suitability and similarity of the alternative land. The court emphasised that silvicultural considerations govern such decisions, not planning merits or public interest in development.

Finally, the court considered procedural fairness concerns arising from the involvement of a Forestry Commission official acting as secretary to the appeals committee and briefing the Secretary of State. While recognising this was inappropriate, the court found no substantial prejudice to the respondent, as the legal and factual issues were clear and the decision to uphold the restocking notice was sound on the merits.

Holding and Implications

The court allowed the Secretary of State's appeal and dismissed the Respondent's Notice.

The court held that planning considerations, including the public interest in the delivery of development and the prospect of future planning permissions, are irrelevant to the exercise of powers under Part II of the Forestry Act 1967, including appeals against restocking notices under section 17B. Only interests related to good forestry, agriculture, and local amenities, as defined by the FA 1967, are relevant.

The decision confirms that the forestry licensing regime and the planning regime operate as separate but coordinated statutory schemes without legislative hierarchy. The ruling prevents the planning merits or development interests from being considered in forestry enforcement appeals, thereby reinforcing the statutory purpose of maintaining adequate reserves of growing trees and good forestry practice.

The court also clarified that while the Commission and decision-makers may exercise discretion and consider changes in circumstances, such discretion must be exercised within the confines of the forestry legislation and its objectives. The ruling limits the scope of appeals against restocking notices to forestry-related considerations, excluding broader planning or public interest arguments.

No new precedent was set beyond the clarification and reaffirmation of existing principles established in prior case law, notably R (Arnold White Estates Limited) v Forestry Commission.