Judicial review – Time limit – Felling licence –Appellant seeking to apply for judicial review of respondent’s refusal to withdraw notice issued under section 24 of Forestry Act 1967 – Respondent refusing permission as application made out of time – Appellant appealing – Whether application issued out of time – Whether respondent having power to withdraw notice once issued – Appeal dismissed
On 1 June 2016, the appellant obtained outline planning permission, for a “mixed use” development at a site at Ilford Park, near Newton Abbot in Devon.
In 2018, the appellant applied to the respondent Forestry Commission under the Forestry Act 1967 for a felling licence for the clearing and thinning of trees on the site. The licence was granted on 19 October 2018 subject to restocking conditions. The appellant proceeded to fell trees on the site with a view to selling cleared plots.
On 28 July 2020, after the deadline for restocking had passed, the respondent issued and served on the appellant a notice under section 24 of the 1967 Act. The notice required the appellant to take steps to comply with the restocking conditions before 28 October 2021.
On 14 September 2020, the appellant was granted full planning permission for the construction of an access road. The grant was subject to conditions which would make it impossible for the appellant to comply with its restocking obligations.
On 13 January 2021, the appellant sought confirmation that the obligation to re-stock had been superseded by the planning permission and was no longer enforceable.
The respondent considered that a planning permission could not be acted upon if it would make it impossible to comply with the conditions on a section 24 notice; planning permission did not remove the requirements of an extant and implemented felling licence; and the respondent had no power to amend or withdraw such a notice once issued.
The appellant was refused permission to apply for judicial review of that decision as the application was “out of time”. In any event, the grounds of claim were unarguable. The appellant appealed.
Held: The appeal was dismissed.
(1) Under CPR 54.5, a claim for judicial review had to be filed both promptly and, in any event, not later than three months after the grounds to make the claim first arose. A claimant had to challenge the substantive decision that was the real basis of their complaint. The claimant might fail to bring a challenge to a particular decision, and then seek to challenge some later ancillary or consequential decision or approval of the earlier decision on the ground that the later decision was unlawful as it is based on the original decision which was also unlawful. In such situations the courts might find that the time-limit began to run from the date of the earlier decision.
What was required to satisfy the requirements of promptness would vary from case to case and depended on all the circumstances, but the court would not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received: R (on the application of Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737; [2019] PLSCS 80 considered.
(2) The appellant’s real grievance here was with the decision to issue the section 24 notice on 28 July 2020, and to maintain the notice when a planning permission incompatible with it was granted on 14 September 2020; and the decision to enforce compliance with the restocking conditions on the felling licence was misconceived and unlawful.
The claim was not launched promptly and it was also substantially late. It was brought about 11 months after the section 24 notice was issued, and over nine months after the September 2020 planning permission was granted. That delay was unacceptable. No explanation or excuse for it had been offered to the court. Nor had there been any application for an extension of time.
In the circumstances, the time for bringing a claim for judicial review could not be extended by generating correspondence whose effect, unless some new factor had emerged, was merely to confirm a decision which had been taken previously. To permit the time limit to be circumvented in that way would subvert the certainty which was an essential purpose of that time limit. It would be contrary to the requirements of CPR 54.5 and irreconcilable with the statutory scheme in the 1967 Act: Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) considered.
The respondent had simply concluded, acting on its own statutory responsibility for the management of forestry and the control of felling, that it was expedient to enforce compliance with the restocking conditions on the felling licence. The respondent had acted in good faith as a public body in the exercise of the statutory functions conferred upon it by the 1967 Act, and, when called upon to do so, in explaining the position it took.
Therefore, the appeal would be dismissed on the basis that the claim was issued well out of time and without any proper justification being presented to the court.
(3) Section 24 of the 1967 Act had to be viewed in its own statutory context. The statutory procedure for its enforcement was not open-ended. It reached finality either in an appeal under section 25, or in the respondent entering on the land to take the steps required by the notice under section 24(3) or criminal proceedings being instituted under section 24(4). In every case the respondent had a discretion as to how it should best proceed, having regard to the interests of good forestry. At any stage in the statutory process, the respondent might choose not to commit further resources to enforcement if it would not be expedient to do so.
If parliament had intended the respondent to have a general power to withdraw a section 24 notice, it would have expressly made provision for it. The court should not imply one. Creating such a general power would be a matter for the legislature, not the court.
Once it had issued a notice under section 24, it was entitled to expect that the requirements of the notice and the underlying requirements of the conditions on the felling licence would be complied with, or an appeal pursued under section 25.
(4) Had it been necessary to decide the point, the section 24 notice was issued on a lawful basis which had not been lost when the respondent’s refusal to withdraw it came under attack. There was no implied general power for the respondent to withdraw a section 24 notice of the kind for which the appellant contended. In any event, the respondent had legitimate and reasonable grounds for maintaining the notice, at least until after the compliance date stated within the section 24 notice and a subsequent inspection.
David Elvin KC and David Hercock (instructed by Gosschalks LLP, of Hull) appeared for the appellant; Zack Simons and Anjoli Foster (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Arnold White Estates Ltd v Forestry Commission
