What the case was about
Smar Holdings unlawfully felled trees on land in Keynsham without a felling licence, triggering a restocking notice (RSN) under s.17A Forestry Act 1967. On appeal to the Secretary of State, Smar argued:
- The land was proposed for housing allocation in an emerging local plan.
- It would be in the public interest to modify the RSN so the trees could later be removed if planning permission was granted.
- Alternatively, the restocking should take place on different land.
- The committee’s process was unfair due to involvement of a Forestry Commission official in ministerial briefing.
The High Court had agreed with Smar and quashed the decision. The Secretary of State appealed.
What the Court of Appeal decided
1. Planning considerations are not relevant to restocking decisions
This is the key point and the reason the Secretary of State won.
The Court of Appeal held:
- The Forestry Act regime exists to protect and maintain national forestry resources.
- The planning system is separate.
- Parliament created only two explicit “join points”: s.9(4)(d) (felling needed for development with full planning permission) s.15 (interface with TPOs).
- Beyond those, planning merits (housing need, allocations, public interest) are irrelevant when deciding whether a restocking notice should stand.
So the Secretary of State was not required — and indeed not permitted — to take into account the public interest in housing delivery or emerging allocations.
This overturns the High Court’s core reasoning.
2. Smar’s proposed modification to the RSN was lawfully rejected
Smar wanted to insert a clause allowing the restocked trees to be removed automatically “if planning permission is later granted”.
The Court said:
- That would undermine the felling control regime.
- It would pre-empt the Forestry Commission’s enforcement discretion.
- It could distort future planning decisions by allowing unlawful felling to influence the baseline.
Therefore, rejecting the modification was entirely rational.
3. Alternative-site restocking: a permissible consideration, but Smar provided no evidence
The Court said:
- Restocking on alternative land can be relevant under s.17A because the statute expressly allows it.
- BUT the landowner must provide evidence of suitability.
- Smar offered almost nothing — no silvicultural justification, no equivalence data, nothing.
So the committee was entitled to reject the alternative-land proposal.
4. Alleged procedural unfairness (Ground 4) — inappropriate, but not fatal
A Forestry Commission official, who served as secretary to the reference committee, submitted briefing to the Minister recommending acceptance of the committee’s report.
The Court held:
- That was inappropriate, because the Commission was a party to the dispute.
- But: no material prejudice resulted because all the relevant issues turned on points of law, and Smar’s arguments on those points failed in principle.
So the decision wasn’t quashed on procedural grounds.
Overall outcome
Appeal allowed.
High Court judgment overturned.
Smar’s judicial review dismissed.
The Court of Appeal restored the Secretary of State’s original decision upholding the restocking notice.
Key principles coming out of the case
A. Planning merits (including housing delivery) are irrelevant to felling-control decisions
Only forestry-related factors—good forestry, amenity, silviculture, maintaining reserves—can be taken into account.
B. Developers who “jump the gun” by felling early must live with the consequences
If you want to rely on the s.9(4)(d) exemption, you must wait until you have a full planning permission (or outline with reserved matters approved).
C. Proposed development—even a draft allocation—does not dilute restocking duties
Emerging planning documents have no relevance to the Forestry Act regime.
D. Alternative-land restocking needs proper evidence
Vague suggestions will not succeed.
Why this case matters (practically)
- It shuts down arguments that planning need or housing benefit can justify modifying or avoiding RSNs.
- It reinforces the disincentive for developers to fell early.
- It underlines that felling-control decisions must remain insulated from planning pressures.
- It ensures that unlawful felling cannot be retrospectively “fixed” by leaning on future development prospects.
For anyone operating in the overlap between trees and planning (so, you!), this is now pretty definitive authority.
