“(1) A felling licence granted by the Commissioners shall be required for the felling of growing trees, except in a case whereby or under the following provisions of this Part of this Act this subsection is expressed not to apply.”
“(1) Untilsection 17A of the Forestry Act 1967 was amended by the Regulatory Reform (Forestry Order) 2006, it was not possible for the Forestry Commissioners to serve a restocking notice until the person said to be responsible had been convicted of an offence under section 17. The 2006 Order amended section 17A to allow a restocking notice to be served where it appears to the Forestry Commissioners that a person has committed an offence under section 17. However, it remains the statutory intention that an offence under section 17 must have actually been committed before a restocking notice can be served: see paras 42 and 52 of the House of Commons Regulatory Reform Committee report on theProposal for the Regulatory Reform (Forestry) Order 2006 published on5 December 2005 . In the present case, by a written charge and requisition sent on21 May 2018 , I was charged by the CPS on behalf of the Commissioners with the following offence: “Wickford Development Company Ltd between21/11/2017 and22/11/2017 , at land to the south of Newton Hall, near Great Dunmow, Essex, was responsible for the felling of trees at the aforementioned land, without the authority of a licence issued by the Forestry Commission undersection 9(1) of the Forestry Act 1967 , contrary tosection 17(1) of the Forestry Act , as amended.”
“(1) it is an abuse of the power insection 17A of the Forestry Act 1967 to serve a restocking notice in circumstances where (a) a prosecution has been brought and discontinued and (b) no further prosecution could be brought in respect of the alleged offence in the notice.”
“42. The Commissioners consider that the no reasonable right or freedom would be lost as a result of the proposed power for them to impose re-stocking requirements. They also believe that, by permitting that a person can be required to restock felled trees without the existing condition of his first having been convicted of the relevant offence being satisfied, that person's freedom would actually thereby be enhanced, as he would not necessarily be prosecuted in circumstances where he might currently be. This reasoning seems questionable; but in these circumstances the relevant consideration under the Standing Order and statutory test is that no person should be compelled to carry out restocking unless that person has indeed committed the offence of unlawfully felling trees under the 1967 Act (or he has to carry out the remedial work as the freeholder of the land, in a situation where the person responsible for felling the trees no longer retains such an interest in the land as would enable him to comply with a remedial notice). However, we consider that no reasonable right or freedom would be lost, given the proposal maintains a right of appeal against a restocking notice where the service of that notice or its terms might be in some way unfair. ….. 52. It is proposed that a person could have a legal duty to carry out remedial works imposed on them as a result of a decision of the Forestry Commissioners, in circumstances where at present that person could be required to perform those works only after being found guilty of the necessary offence in the courts. The Commissioners have stated that there is no intention that the standard of proof required before a re-stocking notice is issued will in practice be lessened, so as to make it possible for re-stocking to be required in cases where a conviction would presently be unlikely or impossible. They further argued that the process of determining whether a re-stocking notice should be served on someone is concerned with questions of fact, and that this is a judgement ‘which the Commissioners would be qualified to make’. Essentially, they seem to consider that the existing requirement to obtain a prosecution is without a practical justification or beneficial purpose, given their belief that they will always be in a position to reach a justified conclusion on whether a person has committed the relevant offence. The relevant question therefore appeared to us to amount to whether there is any necessary protection for the public in the need for the Commissioners to obtain a conviction before they may require restocking works to be carried out. If there are no questions of fact which the Commissioners could not determine as readily, effectively and impartially as a court, there would not be any necessary protection in the current requirement to secure prosecution. ….. 54. The Commissioners argued in support of their proposal that the current need to obtain a conviction as pre-condition for requiring re-stocking has given rise to a situation in which the ‘existing provisions have not been effective’. This view is derived from their argument that there are many cases where the relevant offence has certainly been committed but no prosecution is ever attempted as it would not in their view be in the public interest to do so (and thus enable the service of a restocking notice) for reasons such as the offence having been committed in ignorance. On this basis, the Commissioners believe the existing enforcement machinery gives rise to active problems, in addition to their view that there is no practical benefit in requiring prosecutions as pre-condition for enforcement when they believe that they are already in a position to establish for themselves whether the relevant act has in fact been committed. ….. 56. We therefore asked the Commissioners to explain how they proposed in practice to determine whether a person had committed the relevant offence under the 1967 Act. In their response, the Commissioners said that it was intended that appropriately qualified members of their staff should visit the site of any alleged unlawful felling to investigate the allegation, and that they would both examine evidence on site and interview any witness or other people present who might be in a position to offer relevant information. Following such a visit, a report and recommendations would be prepared which would ultimately pass to the Director of Forestry for either England or Wales (as appropriate) to consider. In each case, the Director would decide whether i) no action should be taken; ii) a restocking notice should be issued and/or; iii) the person responsible for the felling should be prosecuted. We consider this process should be adequately robust to arrive at an informed decision, provided the investigations in individual cases are carried out with sufficient care; we also consider it is appropriate that the decision about whether to issue the notice should be taken at this senior level. 57. Various statistics relating to the operation of the current enforcement mechanisms are given in the Regulatory Impact Assessment at pp 50 and 51 of the explanatory statement. These indicate that, in England and Wales in 2003/4, 215 cases of alleged illegal felling were reported and 76 were fully investigated, of which 15 finally went to court. 14 of these 15 court actions resulted in a successful prosecution. It is noted on page 51 of the explanatory statement that ‘The [Forestry Commissioners] would have liked to pursue a larger proportion of those investigated … but did not on the advice of Defra Legal’. This appeared to us to indicate that there are more instances of alleged illegal felling in which the Commissioners would like to enforce re-stocking than cases in which the Commissioners believe a successful prosecution could be achieved. The implication seemed to be that, should the Commissioners be given the powers which they propose, they would use that power to enforce restocking in instances where at present the need to prove the relevant offence in court or demonstrate a public interest in prosecuting would make this impossible. It is not clear to what extent any increase in the use of the power could arise from a lower standard of proof or simply a lower cost of taking action under the administrative procedure compared with that currently through the courts.”
“26. For these reasons it is submitted that the service of the restocking notice was unlawful or at least so unfair as to amount to an abuse of the power in section 17A.”
“38. Given that the trigger for a restocking notice is the commission of an offence under section 17, it is submitted that the purpose of the notice is plainly to remedy the harm caused by the offence. There must, therefore, be a reasonable relationship between the alleged offence and the steps required by a restocking notice. 39. The woodland management plan commissioned by Wickford stated that In June 2017 there were 27 individual trees and 4 pioneer tree groups on the site. The restocking notice requires that 242 trees be planted on the site. Even if it were shown that Wickford had cleared the site of trees (which it had not) the requirement in condition 1 of the schedule to the notice would be grossly dis proportionate and unfair.”
“Rather, the word ‘restock’ is used, which indicates that the felled area, in this case a woodland, is to be stocked sufficiently with trees in order to replicate that which was lost. A woodland is much more than the number of stems present within it, and is largely constituted by its canopy cover. On a 1 for 1 replacement basis, it would take a lifetime to replace that which was lost. Moreover, natural processes will inevitably claim the lives of some of the trees restocked, and therefore it is appropriate that more are planted than are intended to be in place 50 – 150 years from now. Clearly this interpretation would render the [restocking notice] entirely ineffectual. Restocking densities are selected based on the long-term aims of restoring the woodland. The minimum industry standard for restocking broadleaved woodlands is 1,100 stems/stools per hectare (sph). Using this guideline 1,100 sph in the 0.22ha compartment equates to 242 trees. To meet this stocking density, the [Forestry Commission] accepts the planting of whips. A whip is a young tree seedling that resembles a stick – standing at around 30-40 centimetres tall and with a diameter less than the thickness of a pencil. These seedlings are accepted as replanting by the FC, and would have met the terms of the notice.”
“…the stems of trees are mostly valued for their timber, while the canopy provided by trees provides more value in terms of habitat and amenity… one for one replacement does not restore canopy cover within a reasonable timeframe and practicality dictates that Forest Services require a higher stocking density… 1,100 stems per hectare is used when considering restocking conditions for felling licences…”
“1. The Reference Committee agreed that the legal issue raised by the Objector, namely that the serving of the Restocking Notice followed a discontinued prosecution, was beyond the remit of the Committee to conclude upon. The Reference Committee noted further that the Objector accepted this, and that the Objector’s intention in raising it was for the sake of exhausting available processes for the sake of justifying Judicial Review as a remedy of last resort.”
“13. The Reference Committee agreed that the standard restocking practice of 1,100 stems per hectare was not unreasonable, and did not find the Objector’s argument against the conditions in the notice to be justified on silvicultural grounds. The Reference Committee agreed that restoration of canopy cover to the site was likely to be achieved by following the conditions set out in the Restocking Notice, but noted that the removal of natural regeneration on the site for the sake of restocking would be ill-advised. ….. Conclusions 16. The Reference Committee concluded that the felling required a felling licence, and that in the absence of one that a Restocking Notice is a reasonable and proportionate response to the offence of unlicensed felling. 17. The Reference Committee concluded that any Restocking Notice now served should take into consideration the natural regeneration already on the site as part of its conditions, given the amount of time elapsed since the initial felling and the appeal against the subsequent Restocking Notice reaching the Reference Committee. 18. The Reference Committee concluded that the current Restocking Notice should stand subject to two minor modifications namely (1) a new compliance date to allow a planting season to complete the required works, and (2) to allow successful natural regeneration to count towards meeting the restocking requirements with new planting making up for any shortfall.”
“86. There is no doubt that the [reference committee] did not deal with the abuse of power argument. It is one of the (many) oddities of the process in these cases that the [reference committee] was extremely reluctant to deal with anything that they thought was a “legal” argument. This is understandable to the degree that there is no legal representative on the [reference committee], nor is there a legal clerk or adviser. Doubtless they normally deal with issues of silviculture and felt themselves to be ill-qualified to deal with legal issues. They therefore declined to deal with them. There are, however, two difficulties. Firstly, as a statutory body exercising public law powers it was incumbent upon the [reference committee] to exercise those powers lawfully, and in accordance with the normal principles of public law. The obvious answer, if they felt themselves to be faced with a submission on a legal issue which they were not confident to resolve, was to seek external legal advice. Secondly, if the [reference committee] considered it could not deal with a legal issue, it was necessary that the minister then did so. Otherwise there could, as happened here, be an issue raised that arguably was simply not dealt with.”
“142. However, the difficulty in this case is that the minister's decision does not show that she considered the abuse of process argument either. Ms Sargent submits that there is no duty on the minister to give reasons and that the court should assume, given that it was drawn to her attention, that the minister did consider and reject the abuse of process issue. 143. It is correct that there is no statutory duty on the minister to give reasons, whereas there is on the [reference committee]. There is no general common law duty to give reasons, but such a duty may arise in special circumstances, CPRE[2018] 1 WLR 108 , para 51. The situation in Wickford exposes the lacunae in the statutory scheme in this regard, similar to that in CPRE . The claimant put a detailed argument on the appeal to the RC and has no way of knowing whether it was taken into account or how it was dealt with by the minister, thus causing the claimant significant prejudice. Either the statutory scheme requires the [reference committee] to deal with the argument, and give reasons in its report to the minister, or if they are not required to do so then fairness requires the minister to explain why she did not accept the argument. Even assuming the minister did take the issue into account, the claimant has no way of knowing whether the minister lawfully considered it or not. 144. As such, this is a case which falls into Lord Carnwath JSC's analysis in CPRE; if the minister either did not accept the [reference committee’s] reasons or the [reference committee] did not deal with an issue, then there was a duty on the minister to explain how she had dealt with it. I therefore find ground 1 made out.”
“148. For these reasons I find for the claimant on ground 1 alone. Ms Sargent submits that in those circumstances I should not quash the decision by reason of section 31(2A) of theSenior Courts Act 1981 because it is “highly likely” that the outcome would not have been “substantially different” if the error of law had not been made. The approach to this section was carefully explained in R (Cava Bien Ltd) v Milton Keynes Council [2022] RVR 37, para 52. It is a high hurdle whereby the court conducts its own assessment. In my view, this case is somewhat easier than many to which to apply section 31(2A), because the argument being put was principally a legal one, concerning what the [Commissioners] said to the Regulatory Reform Committee in 2006 and the legal relevance of that. It is not a case where the court has to step into policy or factual judgements to be made by the minister. 149. In my view, the section 31(2A) test is made out because the “abuse of process” argument, which the minister failed to address, is wrong and is therefore highly likely to have been rejected, in any event. The limited circumstances in which reliance can be placed upon what was said in Parliament were considered by the Court of Appeal in R (Heathrow Hub Ltd) v Secretary of State for Transport[2020] 4 CMLR 17 , para 158. It is not at all clear that any of the limited circumstances set out there apply in the present case. The claimant is not seeking to argue that the words of section 17A are ambiguous, because plainly they are not. The section is clear that there does not need to be a prosecution or that a prosecution could still be brought before [a restocking notice] is served. The test is simply that it appears to the [Commissioners] that the person has committed an offence. 150. Mr Green relies upon Spath Holme,[2001] 2 AC 349 , 392 as set out above. However, the assurance that the [Commissioners] gave to the Regulatory Reform Committee was by no means the type of categorical assurance that Lord Bingham was apparently referring to. There, terms of what was said were broad and general, rather than clear and specific. Further, and in any event, it is apparent from the extract set out at para 79 above that the Regulatory Reform Committee did not actually rely on any specific assurance that the [Commissioners] had said to them. The committee report makes clear that they accepted that [restocking notices] could be served even where there could be no prosecution. The safeguard that the Regulatory Reform Committee relied upon was that of the statutory appeal and their confidence that that process would protect the landowner from any unfairness. 151. Further, in my view, Mr Green's argument proves too much. The claimant was submitting to the [reference committee] that [a restocking notice] could not be served after the prosecution had been withdrawn, and at a time when no further prosecution could be brought, because of the statutory time limits. But those requirements do not appear in the statute, which plainly contemplates that a restocking notice] can be served when there has been no successful prosecution. The only statutory requirement is that it appears to the [Commissioners] that an offence has been committed. That is different as a matter of language from a requirement that no [restocking notice] would be served if no prosecution would succeed. Even if the [Commissioners] had made an unequivocal representation that no [restocking notice] would be served in those circumstances, it is hard to see how the [Commissioners] could be bound in perpetuity not to rely on the statutory language and not to exercise its powers under the statute. If that was the intention of Parliament then it is reasonable to suppose that Parliament would have amended section 17A to place the restriction on a statutory footing. 152. Mr Green submits that the error was that the minister did not deal with the argument, rather than that it would necessarily have succeeded. However, in my view, for the reasons set out I think it is at least “highly likely” that the minister would have rejected the argument and upheld the [restocking notice] in any event. I therefore decline to quash the minister's decision on the basis of section 31(2A)Senior Courts Act 1981 .”