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This article first appeared in Confor’s Forestry & Timber News Magazine, published here August/September 2025.
The Forestry Act 1967 (‘the Act’) imposes various requirements in relation to controlling the felling of trees. In this article, we give a brief summary of some of the provisions of the Act relating to felling licences and restocking notices in England, as well as providing an update on a recent Court of Appeal case which considered the relationship between restocking notices and the planning regime.
The law – felling licences and restocking notices
The Forestry Commission has various duties prescribed in section 1 of the Act, which include promoting the establishment and maintenance of adequate reserves of growing trees. To assist with the fulfilment of these duties, Part II of the Act gives the Forestry Commission wide powers to control the felling of growing trees.
Section 9 of the Act requires a person to obtain a felling licence from the Forestry Commission before felling growing trees. This is subject to various exemptions – for example, section 9(4)(d) provides that this requirement to obtain a felling licence does not apply where the land is immediately required for the purpose of carrying out development authorised by planning permission that has been granted (or deemed to be granted) under the Town and Country Planning Act 1990.
It is an offence for anyone to fell a tree without such a felling licence, and anyone who does so will be liable on summary conviction to a fine (section 17 of the Act).
If the Forestry Commission considers that a person with an interest in the land has committed an offence under section 17 (even if they have not been convicted of that offence), it may serve a restocking notice on them. This is a notice under section 17A requiring that person to restock that land (or to stock other land, if agreed by the Commission) with trees and maintain them in accordance with good forestry for up to 10 years.
It is possible to appeal the issue of a restocking notice by following the procedure under section 17B of the Act, which involves bringing an appeal to the Secretary of State, who (unless he considers the appeal to be frivolous) must refer the matter to a reference committee.
Restocking Notices in the Court of Appeal – the case of R (Smar Holdings Limited) v Secretary of State for Environment, Food and Rural Affairs
In July 2025, the Court of Appeal issued its judgment in the case of R (Smar Holdings Limited) v Secretary of State for Environment, Food and Rural Affairs. In this case, Smar Holdings Limited (‘Smar’) felled trees on its land in Bristol without a felling licence, and in March 2020 the Forestry Commission served a restocking notice. Smar subsequently appealed against the restocking notice to the Secretary of State, on the basis that the land had been included in a proposed housing allocation in the Bristol City Council Local Plan Review, and it would not be “in the wider public interest” for the development potential of the land to be blighted during the 10 year period in which the requirements of the restocking notice would apply.
Following an unsuccessful appeals process under section 17B, the case was brought to the High Court, where the judge held that the broad public interest in delivering development could (and sometimes must) be taken into account in decisions about enforcement under the forestry regime. However, the Court of Appeal subsequently overturned this decision, holding that the overall merits of a proposed development or a public interest in its delivery are irrelevant factors in the exercise of the power to serve a restocking notice. The focus of the power to serve restocking notices under section 17A, according to the Court, is simply to achieve the restocking of the land from which trees have been removed unlawfully, and only the interests of good forestry (and agriculture and local amenity) and the Forestry Commission’s duties in section 1 of the Act are relevant. The Court confirmed that, although the section 1 duties do not apply to the Secretary of State or the reference committee, there is nothing to suggest that they may have regard to a broader range of factors than the Forestry Commission.
The first instance decisions in Smar and Wickford had sent a chill through the Forestry sector, as they indicated that the Forestry Commission was expected to evaluate felling proposals against wide areas of policy. It is expected that for those in the Forestry and Timber Sector, this decision rights that issue and confirms the expectation post Arnold White Estates Ltd v Forestry Commission that the legislation intended to protect Forests remains paramount over Town and Country Planning legislation. Landowners and developers should therefore consider the requirements of the Act carefully in relation to land which is going through the planning process.