Property developer Arnold White Estates Ltd has lost a Court of Appeal challenge to a Forestry Commission notice enforcing the restocking conditions of a felling license.
Lawyers for the company had been arguing that a subsequent granting of planning permission that made the restocking impossible overrides the notice. A three-judge panel at the Court of Appeal disagreed.
Arnold White Estates is currently developing a site at Ilford Park, near Newton Abbot in Devon. It plans to build four large commercial units, an office block, a pub, a restaurant and playground, and 35 dwellings on the site.
According to a ruling handed down yesterday, the Forestry Commission approved a felling license in 2018, applied for by the developers, that imposed restocking conditions.
The developers cleared the site, started the development, started restocking but did not meet the full conditions.
In July 2020, the Forestry Commission issued Arnold White Estates with a notice ordering it to meet the restocking requirements.
In September 2020, the local council granted Arnold White Estates planning permission for an access road and footways on the site which, the developer said, made the restocking impossible.
The disagreement escalated into a court dispute with Arnold White’s lawyers arguing that the 2020 planning permission trumped the Forestry Commission notice.
In the ruling, written by Court of Appeal judge Sir Keith Lindblom, senior president of tribunals, the challenge was dismissed because the court ruled that it was filed too late.
However, the judges did address the legal point at the heart of the case, saying that if they had needed to determine the question, the Forestry Commission was still in the right.
“I do not accept that, on the proper interpretation of the provisions governing felling in the 1967 Act, a subsequent grant of planning permission automatically trumps an extant felling licence, or the conditions imposed upon it,” Lord Justice Lindblom said in the ruling.
“In this case it was clearly the view of the Forestry Commission when it issued the section 24 notice that it would not be consistent with good forestry and thus in the public interest for Arnold White Estates, having had the benefit of the felling authorised in the felling licence granted on 19 October 2018, to be able to avoid the burden of the restocking conditions which had been imposed on that licence as indispensable requirements if the proposed felling was to proceed,” he said.
“To conclude, if we had to determine the question in disposing of the appeal, I would hold that the Forestry Commission’s ‘decision’ […] was not taken on a mistaken understanding of its statutory powers, and that it did not act irrationally or otherwise unlawfully in conducting itself as it did.”
Arnold White Estates Ltd v The Forestry Commission
Court of Appeal (Lord Justice Lindblom, Lord Justice Holroyd, Lord Justice Coulson) 6 October 2022
