Lanchester Properties Limited, R (on the application of) v Forestry Commission

This is my decision following the hearing of the claimant’s (“Lanchester’s”) claim for a decision by the defendant (“the Commission”) recorded in a letter dated 4 March 2025 to be quashed. The decision was made under the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 (“the Regulations”). (Footnote: ¹) It relates to Greencroft Woodland (“the forest”), a proposed woodland covering about 290 hectares of mainly agricultural land near Lanchester and Consett in County Durham. Formally, the proposer of the forest is the North East Community Forest (“the Community Forest”), represented by the Third Interested Party, although, I understand, the forest, is to be funded primarily by the First Interested Party (“FCFS”), a Guernsey-regulated green fund the aim of which is to invest in carbon capture projects. The Community Forest had applied to the Commission, under regulation 5, for the Commission’s opinion about whether the creation of the forest would be “a relevant project”. An afforestation project is a relevant project for the purpose of the Regulations if, amongst other criteria, “it is likely, by virtue of factors such as its nature, size and location, to have significant effects on the environment” (see regulation 3(1)(b)). By the decision, which was made under regulation 6(4A), the Commission effectively gave its opinion that the creation of the forest would not be a relevant project; (Footnote: ²) that is, that it would not be likely to have significant effects on the environment taking into account the criteria in Schedule 3 (see regulation 6(2)). In fact, the Commission said in the decision letter: (Footnote: ³)

“I can confirm that it is the Forestry Commission’s opinion that this proposal will not require our consent under the EIA Regulations…”

The Commission said this because, by regulation 4, save in circumstances which do not apply in this case, the Commission’s consent is required for a relevant project to be carried out. For the Commission’s consent to be obtained, a full environmental impact assessment would have to be prepared.

Although the decision in this case was made under the Regulations, similar decisions are frequently made, under similar statutory provisions, by other planning authorities.

The Lanchester Group (which includes Lanchester) operates a large bottling plant to the north of the forest. The plant is mainly powered by three on-site wind turbines, and surplus electricity is exported to the national grid. Lanchester objected to the forest because Lanchester (and the group more generally) has been concerned that the creation of the forest will increase wind turbulence which will cause the wind turbines to shut down, functionally disabling them. (As it happens, although a ground for judicial review was that the Commission failed to consider wind turbulence before reaching its decision, Lanchester has not been permitted to proceed on that ground. As it also happens, the grounds on which it has been permitted to proceed were not raised by it in its pre-decision objections).

By regulation 6, the Commission has, by default, twenty eight days from the date when it has sufficient information to enable it to give a screening opinion to give that opinion. However, the Commission was involved over a much longer period than that with the proposal for the forest. (Footnote: ⁴)

The proposers first notified the project to the Commission on 20 December 2022, and obtained a £1,500 Stage 1 Woodland Creation Planning Grant three weeks later in January 2023. The grant was intended to fund a desktop study by the proposers to help determine whether the project might be viable.

Two officers of the Commission, Jessica Turner, the Commission’s historic environment adviser, and Robin Gray, a landscape and woodland design advisor to the Commission, carried out their first site visit on 5 April 2023. The Commission’s evidence is that:

“Ms Turner has a BA Hons (Archaeology) and is a historic environment specialist working in the heritage sector since 1992, working first as a field archaeologist and then as a senior geomatician/archaeological surveyor. In 2001 she moved into the role of historic environment adviser with two different national landscapes before joining the Forestry Commission in 2021. Ms Turner has 23 years of experience advising on heritage within [the] rural and countryside context, forestry, agri-environment and working within both the planning and UKFS regulation forums.

…

Mr Gray has been a Chartered Landscape Architect since 1998 and was a Member of the Landscape Institute Technical Committee 2017-2023. He has nearly thirty years of experience within the forestry and woodland creation sector and produced several landscape character assessments for National Landscapes, local authorities, and Wildlife Trusts. Mr Gray has extensive experience of spatial planning issues compiling responses to planning applications for statutory agencies and a Community Forest. Mr Gray has worked as a Landscape & Woodland Design Advisor with the Forestry Commission since 2021.” (Footnote: ⁵)

Durham County Council, the local authority for the forest location, provided an initial, multi-page, response to the project on 5 May 2023, (Footnote: ⁶) in which a landscape officer said:

“Woodland creation of the scale proposed would have a transformative effect on the character of the landscape which has some existing value and sensitivity. If sensitively designed a new large multi-purpose woodland would not be out of keeping with the wider character of the landscape and could bring many benefits. It would be important that the sensitivities within the site were understood, and influenced the design process from an early stage, and that opportunities to meet wider environmental objectives – particularly in respect of nature recovery, recreation and the water environment – were maximised.

…

Parkland

Conserving the historic parkland would require retention of open space in key areas and management of that land through grazing to maintain its character and maintain/enhance its biodiversity as parkland / wood pasture. The design needs to be underpinned by a detailed understanding of the significance of the park as a heritage asset and the listed features within it.

Potential exists to better reveal significance including opening up access along historic routes and conserving/restoring parkland features/structures. Consideration should be given to retention/creation of lowland wood pasture as specific component of the scheme.

Views

The valley landscapes of the coalfield are very legible because of the sloping terrain which affords widespread and diverse views of and from the landscape. Panoramic views from high ground are a notable feature. Extensive afforestation has the potential to obscure views comprehensively. Care will need to be taken to retain important elements of existing views and create new opportunities for significant views from new public vantage points.

Scale/Fit

Extensive afforestation has the potential to over-write/overwhelm existing landscape character. Care will need to be taken to retaining important landscape features as a legible part of its new structure and to design compartments, open spaces, margins and rides to ensure that the woodlands fits within rather than overwhelms the local landscape and interlocks with surrounding field patterns. As noted above, complexes of medium scale woodlands are characteristic of this landscape and could act as a model for how a larger woodland can be made to fit within the landscape.

…”

Broadly, across the whole of the response the landscape officer advised that the project could contribute to many environmental and planning-related goals, but that, because it was so significant a proposition, the forest would have to be carefully designed.

Another site visit was carried out on 9 May 2023 and Ms Turner carried out a further site visit on 9 September 2023. The Commission held ten public consultation sessions in October 2023.

Also in October 2023, the forest’s proposers obtained a Stage 2 Woodland Creation Planning Grant. A Stage 2 grant is intended to partially cover the cost of the preparation of a site appraisal map, a design concept plan and, after that, a more detailed design plan compliant with the UK Forestry Standard (“the UKFS”). (Footnote: ⁷)

Coincidentally, a new (5^th) edition of the UKFS was published the same month.

The UKFS sets out the approach of the governments of the UK to sustainable forest management and is described, in its introduction, as “the technical standard for sustainable forest management in the UK”. As Mr Findlay KC, Lanchester’s leading counsel, pointed out, it does not follow that a forest which meets the UKFS’ requirements will not, or is unlikely to, have significant effects on the environment. However, as Mr White KC, FCFS’ leading counsel, drew to my attention, a consideration of the effects (or impact) (Footnote: ⁸) of a forest on the environment is a matter which the UKFS requires to be considered. (Footnote: ⁹) About historical environments, the UKFS says:

“It is important that all significant heritage features and designated heritage assets are protected, and that consideration is given to the conservation and enhancement of historic landscapes. Forests can offer a relatively stable environment in which many heritage features survive. However, good management is needed to ensure that these features are preserved for the future and are not damaged by forest operations.

…

Steps should be taken to ensure that heritage features, which may be adversely affected by forestry, are known and assessed on an individual site basis, checking Historic Environment Records and obtaining information and advice where appropriate.

Forest management plans and operational plans should set out how designated heritage assets, significant heritage features and woodland heritage such as veteran trees are to be protected and managed, and should clearly show their location and extent.

…

As a guide, a margin of at least 20m should be identified and maintained around designated heritage assets such as Scheduled Monuments and other significant heritage features, but this will depend on the site itself…

…

Integrate historic environment considerations into the forest planning process by identifying relevant heritage features and evidencing management decisions, and including long-established boundaries and woodland heritage as features to be protected” (emphasis added).

About landscape, the UKFS says:

“Forests should be designed and managed to take account of the landscape context, considering the sensitivity, character and distinctiveness of the local area in line with the European Landscape Convention.

Forests should be designed and managed in consultation with statutory bodies to take account of landscape designations, designed landscapes, historic landscapes and the various policies and strategies that apply.

…

Forest design principles, informed by the landscape context, should be applied to ensure landscape and visual aspects are appropriately addressed” (emphasis added). (Footnote: ¹⁰)

Mr Gray carried out another site visit on 21 November 2023, and a further site visit on 5 June 2024. The Commission requested five visualisations of the forest the same month. Ms Turner carried out another site visit on 21 June 2024.

Ms Turner prepared a file note on 12 July 2024 in which she noted Durham County Council’s initial response, recorded that it had been “reviewed” and concluded:

“From a historic environment point of view this is a UKFS compliant scheme. The applicant commissioned survey where the evidence was significant and either removed areas of archaeological sensitivity from the scheme or combined open space and buffers to ensure that the historic environment is conserved.” (Footnote: ¹¹)

A Landscape Character Appraisal (“the LCA”) was produced on 16 August 2024. (Footnote: ¹²)

The UKFS explains the purpose of an LCA in this way:

“An LCA is an accepted approach used to identify and analyse the consistent pattern of elements (e.g. geology and geodiversity, landform, watercourses, land-use and settlement patterns) that make landscapes distinct, and to categorise and map these as landscape character types. This approach can be applied at any scale and can be used in the forest design process to gather and appraise landscape baseline information and inform forest design concept options…

An LCA will usually include:

• A description and mapping of the landscape, including the key characteristics and special qualities of a landscape, including those relating to trees and forests.

• An evaluation of the landscape, its condition and strength of character.

…

Where available, formal LCA studies provide an essential starting point for forest design, and will inform how the siting, extent and composition of forests can be planned so that they make a positive contribution to the landscape. This is particularly important for significant areas of new woodland or large-scale felling and restocking (or regeneration) proposals that may impact on sensitive landscapes.”

Amongst other matters, the LCA appraised, in two tables, the historic landscape of the site of the forest and the landscape, compartment by compartment. In each table, the independent chartered landscape architects and the development consultants (together “the architects”) who prepared the LCA for the forest’s proposers tabulated each compartment’s sensitivity and provided a rationale for their opinion. It is clear that, within many of the compartments, only certain parts were of “high”, or “medium”, rather than “low”, sensitivity, so that the rationale has to be read together with the architects’ opinion about a compartment’s sensitivity to fully appreciate what their opinion actually was. In relation to areas of high sensitivity, the architects’ recommendation was that “woodland planting…is least preferable with a strong preference for the area to remain free from woodland planting”. In relation to areas of medium sensitivity, their recommendation was that “woodland planting could be accommodated within a considered framework of broadleaved planting and open spaces”, In relation to areas of low sensitivity, their recommendation was that “introduction of woodland planting is unrestricted from a heritage perspective [and landscape perspective as the case may be]”.

Ms Turner produced a response to the tables.

Appendix 1 to this judgment summarises the architects’ opinion and Ms Turner’s response, and sets out, where relevant, the forest proposers’ approach in the final version (version 16) of the forest design. The appendix is based on the helpful submissions at the hearing of Mr Lintott, Lanchester’s counsel, and Mr Westaway, the Commission’s counsel. To be clear, however, before reaching any decision I considered the original documents (the LCA and Ms Turner’s response) themselves.

Mr Gray carried out a further site visit on 24 August 2024.

On 5 September 2024, Ms Turner gave her response, as I have just said, to the LCA in “Forestry Commission Position on Greencroft Woodland Landscape Character Appraisal and Parkland Plan”. She explained that the Commission accepted the LCA and “have used it to assist in assessing the scheme in terms of…UKFS compliance”. Her overall conclusion was: “the Forestry Commission decision is that the Greencroft Concept Design v16 is now UKFS compliant from a historic environment and landscape perspective”.

Durham County Council’s nature recovery advisor provided a further response on the council's behalf on 9 September 2024, in which he said:

“In terms of my overall comments, many of those that I made in June last year still apply and I won’t repeat them here. In respect of the key issues I raised at that time:

1.

Conserving and enhancing heritage assets including key elements of the historic parkland and its listed buildings/structure.

The most recent design iteration avoids the key features of the historic parkland and preserves its most significant interior and outward views.

…

3.

Conserving existing landscape features of value and integrating them as legible elements in the new landscape.

The most recent design iteration avoids many significant landscape features by removing planting from much of the parkland and land to the north and south-east of it. It retains most of the better field boundaries and features of historic interest within planted areas although the legibility and long-term viability of some features will suffer from being buried in the crop. This is inevitable for a scheme of this size. I don’t believe that there are any features of notable importance that would be affected.

Consideration should be given at the detailed level to the retention of field trees – particularly those lying east of Gorecock Lane (Character Area 4) – with sufficient space haloed around them to allow them to mature as future veterans and enhance woodland biodiversity close to the corridor along the Newhouse Burn.^[ (Footnote: ¹³)^]

Careful analysis of views of and from the site informing overall scale, design of compartments, deployment of open spaces, species composition, edges and rides ethe Commission.

Although the LCA analyses the varying sensitivities of different parts of the site there is no information on how and to what extent the final design has been influenced by that analysis, or by an analysis of wider views or wider landscape character. The LCA doesn’t contain a detailed analysis of viewpoints in the wider landscape and isn’t comprehensive in the views it does identify – largely because of its remit.

The scale of the forest has been reduced by the removal of some strategic areas – particularly much of the historic park, areas south of it to the A691 and in the north either side of Tower Plantation together with the area south of Greenland Farm – all of which would be beneficial in reducing its perceived scale and helping assimilate it into the local landscape. Consideration has been given to the detailed design of key edges, and of rides followed by public footpaths.”

As I have indicated, version 16 of the forest design plan was produced on (or is dated, at least) 10 September 2024.

On 12 September 2024, Mr Gray produced a “Landscape Assessment of forestry proposals for Greencroft…”, in which he said:

“This is a large scale application within a landscape that has significant existing woodland elements within it. The proposal has at its core productive spruce as the major element within the application…

The key feature with respect to the application is the presence of the designed Greencroft Park; the core of the park has been removed from this application…Nevertheless the Park forms the context for this application and guided the production of the Landscape Character Appraisal and Parkland…, further requests from the applicant (detailed designs and visualisations) and this assessment based on version 16 of the Woodland Design Concept Plan.

…

Since first presented FC the applicant has made various amendments towards bringing the scheme to UKFS compliance (see detailed comments)

…

• Removal of planting to the south-east of the site (where Parkland landscape is dominant) based on the analysis within the Appraisal.

• Elements of broadleaf woodland proposed next to the Newhouse Burn to create a more ‘naturalistic’ approach to the valley here.

• Extend open space to ensure legibility of Tower Avenue (designed landscape).

…

Overall, it is considered that the scheme will meet UKFS compliance. Whilst the scale of spruce is extensive this has been limited to the least sensitive areas and now has elements of broadleaf, as well as retaining open space around existing features (hedges and trees).

…we do consider that the landscape context of this site can accommodate this scale of change and the mitigation is sufficient to comply with UKFS” (emphasis added). (Footnote: ¹⁴)

In an annex to his assessment, Mr Gray said, amongst other things:

“A landscape character appraisal has been undertaken using the County Durham Landscape Strategy. This has informed changes to the design such as removing compartments where there are landscape sensitivities (designed landscape) and focusing on the plantation on the western part of the site where the landscape sensitivity is less.

Extensive conifer has been reduced to areas that can accommodate that change i.e. larger scale landscape on the west and south of site and upper slopes where landscape more resilient. Version 16 has removed woodland from more sensitive-intimate areas (cpt.10) or mitigated by broadleaf within the Newhouse Burn valley. Version 16 incorporates more open space and more broadleaf.

…

Mitigation i.e. broadleaf framework has reduced impact of the scale of plantation nevertheless, there will be residual impact however the scale of the existing landscape suggests capacity to accommodate change.”

As I have explained, the Community Forest applied to the Commission, on 27 January 2025, under regulation 5, for the Commission’s opinion (a screening opinion) about whether the creation of the forest would be a relevant project.

On 4, 5 and 7 February 2025 the Commission’s decision-maker, (Footnote: ¹⁵) met with the Commission’s woodland creation officer and, on 24 February 2025, there was a meeting between the Commission and the Community Forest to discuss comments received during the Commission’s consultation exercise.

When making the decision, the decision-maker had the following documents, amongst others: the application for a screening opinion, the LCA, version 16 of the forest design plan, Ms Turner’s 5 September 2024 response, Mr Gray’s 12 September 2024 assessment and the Durham County Council documents.

An internal Commission meeting was held on 28 February 2025 at which the decision-maker’s decision, that the proposal is not “a relevant project” (that is, his negative screening opinion), was endorsed.

As I have indicated, the decision was recorded in a 4 March 2025 letter to the Community Forest.

By regulation 6(4A), “where the opinion of [the Commission] is that a project is not a relevant project, [the Commission] shall state (a) the main reasons for being of that opinion, with reference to the relevant selection criteria in Schedule 3 and (b) where proposed by the proposer, any features of the project or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects of the project on the environment.” To meet this requirement, the Commission has produced, and the decision-maker completed in this case, Checklist 10B.

As I have indicated, and as presaged by regulation 3(1)(b), when deciding whether or not a forest will be likely to have a significant impact on the environment, the Commission has to take into account the characteristics of that forest, including its size and design (see Schedule 3; paragraph 1), and its location (that is, “the environmental sensitivity of the areas affected by the proposed project”) (see Schedule 3; paragraph 2), and has to judge, by reference to those two criteria, its impact (see Schedule 3; paragraph 3) on “cultural heritage and landscape” amongst other matters (see Schedule 4). (Footnote: ¹⁶)

Section 2a of Checklist 10B is a table comprised of three columns. The first column contains, across separate rows, different aspects of environmental impact and is intended to capture the factors specified in Schedule 4. The second column is headed “Effect/Impact”. The third column is headed “Mitigation/Compensation”.

In the row for “Historic Environment”, the decision-maker wrote in the column “Effect/Impact”:

“A full Historic Environment and Landscape report commissioned by the applicant has been taken account of in order to protect HE and landscape features.

Dere Street Roman Road and other archaeology south Esp Green Farm. Greencroft Geophysical Survey Report as per FC specification completed.

Buffers to be applied as per UKFS guidance. Forestry Commission comments: Though not a scheduled monument it must be treated as such.

50m open space buffer (25m from either side of centre line) applied to Dere Street. Lady Well buffered to 20m.

Lanchester Conservation Area. Field to be treated sensitively as part of design.

Former Wagonway and Colliery. Buffer to 10m and leave as managed open space.

Local Park of historic interest. Scheme design around the features advised by FC’s Historic Environment Adviser. Removal of proposed forested areas around parkland and increased open space along beech avenue. Plantation crop tobe used in the scallop to the west of the ‘Shoulder of Mutton’ (NZ157496) to help retain the sense of permanent woodland against a ‘farmed’ environment.

Greencroft Combined Landscape and Historic Assessment completed.

UKFS compliant; Jessica Turner, FC’s Historic Environment Adviser, 22/08/2024.

No impact” (emphasis added).

In the row for “Landscape”, the decision-maker wrote in the column “Effect/Impact”:

“The scheme was subject to an independent landscape and Historic Environment study commissioned by the applicant. This informed the design. The design also benefited from advice and input from the FC Landscape Advisor.

Edge treatment with low density native shrubby MB 15m buffer along the road lines. Greencroft Woodland Landscape Character Appraisal and Parkland Plan & Greencroft Landscape Edge Treatments completed. Tower Avenue. Feature to be protected by open ground. Tower Road Viewpoint. Forestry Commission requests this viewpoint left open. Scheme pulled down the slope to ~25m below the viewpoint.

UKFS compliant; Robin Gray, FC’s Landscape Adviser, 20/08/2024;^[ (Footnote: ¹⁷)^] and Jessica Turner, FC’s Historic Environment Adviser, 05/09/2024.

No impact” (emphasis added).

In both cases, in the column headed “Mitigation/Compensation”, the decision-maker wrote: “No further mitigation required”.

Section 2b of Checklist 10B asks the following question: “Considering the effects/mitigation detailed in 2a, will any element of the project have significant effect or impact on the environment? i.e. is our consent required?” The question was answered: “No”.

Lanchester began the claim on 3 June 2025. It advanced five grounds for judicial review in its Statement of Facts and Grounds. Mr CMG Ockelton (sitting as a High Court judge) refused permission to apply for judicial review on paper on 1 September 2025. On 3 February 2026, following an oral renewal hearing, Hill J gave permission for Lanchester to proceed with the claim on three grounds (grounds 1, 2 and 4) for the reasons she gave at the time in an extempore judgment. Lanchester did not apparently pursue ground 3 at the oral renewal hearing and Hill J refused permission on ground 5 (which related to the Commission’s alleged failure to consider wind turbulence before reaching its decision).

As I have indicated, at the hearing Lanchester was represented by Mr Findlay KC and Mr Lintott. The Commission was represented by Mr Westaway and Mr Solimani. FCFS was represented by Mr White KC and Mr Abedian. I am grateful to them all for their carefully presented submissions and the help they gave me. The Second and Third Interested Parties and Durham County Council (the Fourth Interested Party) were not represented at the hearing. They indicated, at different points in the litigation, that they did not intend to participate in the claim.

As pleaded in the Statement of Facts and Grounds, ground 1 is a rationality challenge to the decision-maker’s conclusion that the forest is not likely to have a significant impact on the landscape and ground 2 is a rationality challenge to the decision-maker’s conclusion that the forest is not likely to have a significant impact on cultural heritage.

Lanchester’s rationality challenge, as pleaded in the Statement of Facts and Grounds, may in fact be a challenge to the quality and extent of the decision-maker’s reasons and/or a complaint that it was unreasonable for the decision-maker to conclude that afforestation of the extent and nature proposed is not likely to have a significant impact on the landscape or cultural heritage (see, for example, paragraphs 39 and 43 of the Statement of Facts and Grounds).

The focus of Lanchester’s skeleton argument for the hearing in relation to rationality was a contention that, before reaching his decision, the decision-maker should have had an impact assessment for the forest (which is a contention I find problematic because it was for the decision-maker to decide on the impact of the forest on the environment).

As presented at the hearing, Lanchester’s rationality challenge was that the decision-maker could not reasonably have decided that the forest was not likely to have a significant impact on the landscape or cultural heritage, because the material before him did not adequately address the forest’s impact on those matters. (Footnote: ¹⁸)

Ground 4 is a reasons challenge; Lanchester contending that, by reference to the decision letter itself and Checklist 10B, the decision contains no intelligible or adequate reasons. In the Statement of Facts and Grounds, Lanchester had also contended that, where the Commission disagreed with Durham County Council in particular that an impact assessment was required before any screening decision was made or opinion given, the Commission was bound to give clear and cogent reasons. This contention was not pursued at the hearing.

As I have already said, Lanchester challenges the rationality of the decision in relation to landscape and cultural heritage separately, and I considered those grounds individually before reaching my decision. It is easier, however, and appropriate, to consider the grounds together in this judgment.

On the question of rationality, Lanchester relied on R (Law Society) v. Lord Chancellor [2019] 1 WLR 1649, where the Divisional Court explained, at [98]:

“…“irrationality” or, as it is more accurately described, unreasonableness…has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is “so unreasonable that no reasonable authority could ever have come to it”: see Associated Provincial Picture Houses Ltd v. Wednesbury Corpn [1948] 1 KB 223, 233-234. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v. British Transport Police [1999] 2 AC 143, 175, per Lord Steyn. The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it - for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Factual error, although it has been recognised as a separate principle, can also be regarded as an example of flawed reasoning - the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker’s reasoning: see E v. Secretary of State for the Home Department [2004] QB 1044.”

On the question of whether, in the words of the Divisional Court in Law Society, there is “evidence to support an important step in the reasoning” or, as Lanchester presented its case, the material before the decision-maker was adequate to give a screening opinion, Coulson LJ explained in Kenyon v. Secretary of State for Housing, Communities and Local Government [2021] Env LR 8, at [10]:

“The questions of whether there is sufficient information to issue a screening opinion/decision, and whether a proposed development was likely to have significant effects on the environment, are matters of judgment for the decision-maker: see R (on the application of Birchall Gardens LLP) v. Hertfordshire CC [2106] EWHC 2794 (Admin) paragraphs 66 and 67, and Evans v. Secretary of State [2013] EWCA Civ 115. In the latter case, Beatson LJ said:

“22.

The assessment of the significance of an impact or impacts on the environment has been described as essentially a fact-finding exercise which requires the exercise of judgment on the issues of “likelihood” and “significance”: see…Jones v. Mansfield [2003] EWCA Civ 1408 at [17] and [61] per Dyson and Carnwath LJJ. Carnwath LJ stated that, because the word “significant” does not lay down a precise legal test but requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, the function is one for which the courts are ill-equipped.”

…”

The Judge continued at [43]:

“An appellant seeking to argue that the decision-maker (and, by extension, the judge) reached a conclusion for which there was no evidential basis invariably faces an uphill task. Such a task is made even more difficult in a situation like the present case, given that the screening direction is a preliminary, broad-based assessment of environmental impacts, undertaken by those with relevant training and planning expertise.”

During the hearing, Mr Findlay KC accepted that the Commission had sufficient information to make the decision. In this respect he acknowledged that the Commission had, in particular, the LCA, that there had been multiple site visits and that the Commission knew what the proposal entailed. As I have pointed out more than once, Lanchester’s rationality challenge relates to the adequacy (or sufficiency) of the material available to the decision-maker. The challenge cannot succeed if, as Mr Findlay accepted, the Commission had sufficient information to make the decision.

As it happens, Mr Findlay was right to accept that the Commission had sufficient information to make the decision. Lanchester’s rationality challenge would have failed in any event.

To make a rational decision in this case, the decision-maker had to know (i) which areas of the site of the forest are environmentally sensitive and (ii) why that is so. He also had to know in each case (iii) the area’s degree of sensitivity and (iv) what the proposers intend to do, if anything, in the area, including any proposed mitigations. It would then be for the judgment of the decision-maker, taking into account this information, whether the forest would be likely to have a significant impact on the environment.

The decision-maker had the necessary information. The LCA set out the environmental sensitivity (so far, at least, as is relevant) of the forest and, explained why environmentally sensitive areas are sensitive in their opinion. Ms Turner’s 5 September 2024 response contained a reasoned engagement with the architect’s sensitivity opinions in certain instances. The LCA and Ms Turner’s response considered in detail (and Mr Gray’s 12 September 2024 assessment also provided some information about) the degree of sensitivity of the forest’s compartments and Ms Turner’s response and version 16 of the forest design plan provided information about what the proposers intend to do.

It follows therefore that Lanchester’s rationality challenge fails.

I have also considered whether the decision was unreasonable (the first aspect of rationality discussed in Law Society), and have concluded that it was not. It is helpful to set out my reasons for that conclusion because some of them at least are also relevant to Lanchester’s reasons challenge and Mr Westaway’s invitation that I refuse Lanchester relief as a matter of discretion.

I accept that proposed afforestation in County Durham over an area of about 290 hectares including almost 200 hectares of conifer planting is capable of having a significant impact on the environment, but it does not follow, perhaps contrary to the Statement of Facts and Grounds, that afforestation of this extent and nature is almost inevitably likely to have a significant environmental impact. Any likely significant impact of the forest on the environment has been capable of being designed out, including by removing environmentally sensitive areas from the proposal. Durham County Council recognised this in its 5 May 2023 response when it said, for example, that, if sensitively designed, a new large multi-purpose woodland would not be out of keeping with the wider character of the landscape and it effectively acknowledged this in its 9 September 2024 response when discussing what the proposal avoided and preserved. The architects recognised this in their preferences for areas of high sensitivity and medium sensitivity. It is also reasonable to suppose that Ms Turner and Mr Gray recognised this too, as is evident from their conclusions that the forest is UKFS-compliant, as I explain below.

The architects’ preference for high sensitivity areas of the forest was that they should be kept free from woodland planting. Their preference for medium sensitivity areas was that woodland planting should be within a framework of broadleaved planting and open spaces.

As I have summarised in Appendix 1, those areas of the forest which the architects identified as of high sensitivity have been addressed as follows. Some should be downgraded or considered differently in Ms Turner’s opinion. To the extent that there is no disagreement between the architects and Ms Turner, the areas have been removed from the forest (subject to what I am about to say in relation to compartment 10), will be kept open, or will be treated as Ms Turner has recommended.

There is an issue about whether the whole of compartment 10 (a high sensitivity area) has been removed from the forest. What is important for present purposes is that Ms Turner and Mr Gray believed that it has been and advised the decision-maker accordingly.

As I have also summarised in Appendix 1 (and subject to the issue I am about to consider), those areas of the proposed forest which the architects have identified as of medium sensitivity have been removed from the forest, are to be planted according to the architects’ preference, or are to be planted in accordance with Mr Turner’s recommendation or in a way which is apparently acceptable to her.

There is an issue about whether the viewpoints in compartments 3 and 5, which the architects had assessed as of medium sensitivity so far as historic environment (cultural heritage) is concerned, have been considered by Ms Turner in her 5 September 2024 response. She had said in her 12 July 2024 file note, however, that the forest conserves the historic environment, and, in relation to other viewpoints which the architects had identified as being of medium sensitivity, Ms Turner rejected that in her 5 September 2024 response. It is reasonable to suppose that she does not think that the viewpoints in compartments 3 and 5 are sensitive from a historic environment perspective.

Ms Turner and Mr Gray are experienced in their fields. Their judgment was based on their intimate knowledge of the forest, which included multiple site visits. Both of them concluded that the forest is UKFS-compliant. As I have already noted, the UKFS requires that the impact of an afforestation proposal on the environment is considered. In fact, the UKFS goes somewhat further than that. It requires that significant heritage features, and woodland heritage more generally, are protected and that any design proposal takes account of, and appropriately addresses, the sensitivity, character and distinctiveness of the local area. Ms Turner and Mr Gray are likely to have appreciated that, by concluding that the forest is UKFS-compliant, they were indicating, in Ms Turner’s case, that the forest protects significant and woodland heritage features and, in the case of both of them, that the proposal appropriately addresses the landscape.

Ms Turner also said in her 12 July 2024 file note that the proposers had removed areas of archaeological sensitivity from the forest or were proposing to conserve them with open space and buffers. Mr Gray noted in his 12 September 2024 assessment that Sitka Spruce planting will be limited to the least sensitive areas, which can accommodate that planting, and that open space will be retained around existing hedges and trees. He also concluded that the landscape can accommodate the proposed scale of change.

In its 9 September 2024 response, Durham County Council noted that the proposal avoids key features of the park, preserves the most significant views, and avoids many significant landscape features and features of historic interest (whilst noting that the long-term viability of some features will suffer from being buried in the crop).

The decision-maker had to judge whether any significant impact on the environment had been designed out of the forest. Taking into account all the matters I have just discussed, and noting that, in Kenyon, Coulson LJ acknowledged that courts are ill-equipped to conclude that a screening opinion is irrational and that the Judge warned that a claimant making a rationality challenge faces an uphill task, I have concluded that the decision-maker did not act unreasonably when he effectively concluded that any significant impact of the forest on the environment had been designed out and when he decided to give a negative screening opinion.

As I have said, regulation 6(4A) provides that “where the opinion of [the Commission] is that a project is not a relevant project, [the Commission] shall state (a) the main reasons for being of that opinion, with reference to the relevant selection criteria in Schedule 3 and (b) where proposed by the proposer, any features of the project or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects of the project on the environment.” The regulation does not specify in what document(s) the Commission’s reasons must be set out. Regulation 6(4) provides, however, that “where the opinion of [the Commission] is that the project is a relevant project, [the Commission] shall include in or provide with their opinion a written statement of their reasons for being of that opinion” (emphasis added). The parties apparently agree that I can look at the decision letter and Checklist 10B for the decision-maker’s reasons. They disagree (at least by reference to the Statement of Facts and Grounds) about whether I can look any further.

It is helpful for me to summarise here the relevant authorities on the court’s approach to a decision-maker’s reasons which the parties referred me to and to set out relevant parts of those authorities.

In South Bucks District Council v. Porter (No.2) [2004] 1 WLR 1953, Lord Brown of Eaton-under-Heywood explained at [36], in a passage which has become very familiar to administrative lawyers:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The parties referred me to R (oao Bateman) v. South Cambridgeshire District Council [2011] EWCA Civ 157, where the defendant had given a negative screening opinion about a proposal to build a grain store and processing centre more than tripling the handling capacity of an existing store on the site. The proposer’s agent had applied for a screening opinion by letter dated 27 March 2009 which addressed the criteria in the relevant regulations for determining whether the proposal was likely to have a significant impact on the environment. In the application it was “suggested that the main impact of the proposal was likely to be in landscape and transport terms” (per Moore-Bick LJ at [5]), but it was also proposed that those impacts be addressed as part of the planning permission process. The defendant’s negative screening opinion said:

“…

3.

The site is not within the floodplain or in an area of high-medium flood risk, no public right of way is affected by the proposal, and there are no Tree Preservation Orders within the site. In addition, the proposal does not affect a Scheduled Ancient Monument and the development is not within an environmentally sensitive area.

4.

The main impacts of the development are likely to be: increase in traffic movements, landscape impact, and noise disturbance to nearby residents. Transport, Landscape and Noise Assessments are to be provided with the application.

5.

Having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, it is considered that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location, and will not have unusually complex and potentially hazardous environmental effects.”

The decision was challenged on the ground that it was not adequately reasoned.

On that question Moore-Bick LJ (with whom Jackson LJ agreed) explained:

“9.

…in R (Mellor) v. Secretary of State for Communities and Local Government (Case C-75/08), [2010] Env LR 18 the European Court of Justice confirmed that a decision that a development did not require an EIA must contain or be accompanied by sufficient information to make it possible to check that it was based on adequate screening carried out in accordance with the directive. The court held that it is necessary for third parties, as well as the administrative authorities concerned, to be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary and for them to have sufficient information to enable them to challenge the decision by legal proceedings, if that is thought appropriate.

10.

The following passages in the judgment are of particular relevance:

“59.

…the competent national authority is under a duty to inform [interested parties] of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request…

60.

That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made.”

…

11.

In R (Friends of Basildon Golf Course) v. Basildon District Council [2010] EWCA Civ 1432 Pill LJ, with whom Carnwath and Rimer LJJ agreed, emphasised in paragraph 62 of his judgment that the decision taken on a screening opinion must be carefully and conscientiously considered and must be based on information which is both sufficient and accurate. The opinion need not be elaborate, but must demonstrate that the issues have been understood and considered.

…

20.

…I…return to the substance of the argument, which is that the planning officer failed to demonstrate that she had considered the likely effect of the development in relation to traffic movements, the landscape and noise or, if she had, to explain why an EIA was not required in this case. When considering a submission of this kind I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term “screening opinion”.

21.

Having said that, it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request.

22.

…It is true that the planning officer’s reasons must be read in the context of the letter to which they were a response, but nowhere in them does one find set out a clear statement of her reasons for concluding either that there will be no discernible effects in relation to traffic movements, landscape or noise, or that, if there may be, they will not be sufficiently serious to be regarded as significant…

…

24.

Following the hearing Mr. Lewis helpfully drew our attention to the very recent decision of this court in R (Wye Valley Action Association Ltd) v. Herefordshire Council [2011] EWCA Civ 20, another case in which the court had to consider the adequacy of a screening opinion. The primary issue in that case was whether the council’s decision that the rotation of polytunnels for growing soft fruit was not a Schedule 2 development because it did not constitute “a project for the use of uncultivated land or a semi-natural area”. However, the lawfulness of the decision was also challenged on the grounds that the council had failed to provide sufficient reasons for its decision to satisfy the requirements of Mellor. In particular, it was said that the council had failed to set out the range of considerations it had taken into account in reaching its conclusion.

25.

The council’s reasons were expressed in the following way:

“The application involves the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production).”

26.

Richards LJ, with whom Rix and Smith LJJ agreed, dealt with the question relatively briefly. He held in paragraph 47 of his judgment that the reasons given in the screening opinion were adequate because it was clear enough from what had been said that the decision was based on the fact that the extent of existing cultivation was such as to take the land in question outside the description “uncultivated land or semi-natural areas”. That was sufficient to enable the Association to reach an informed decision whether to challenge the opinion for legal error. It was not incumbent on the council to set out all the considerations it had taken into account. It had set out the essence of its reasoning and that was enough.

27.

Nothing has been put before us to suggest that the planning officer’s decision in this case was not carefully and conscientiously considered, nor do I think it can be said that it was not in fact based on information that was both sufficient and accurate. However, I have, somewhat reluctantly, come to the conclusion that the reasons given for her decision do not make it sufficiently clear why she reached the conclusion that an EIA was not required in this case. That is not to suggest that she may not have had perfectly good reasons for reaching that conclusion, just that it is not clear what they were. Although the matters referred to in paragraph 3, which refers to the risks of flooding, public rights of way, tree preservation orders, ancient monuments and environmentally sensitive areas, are of importance in themselves, they were not aspects of the environment that were potentially at risk and so did not require detailed consideration. Paragraph 5 contains the whole of her reasoning in relation to the effects that were of potential significance.

28.

…One can, I think, infer that the planning officer had considered the three matters to which she referred in paragraph 4 and that she may have accepted [the agent’s] arguments in relation to them. She may have thought that conditions could be imposed on any grant of planning permission to ensure that the effects would not be significant. The difficulty is that one does not know and cannot safely infer what her reasons were. In my judgment, therefore, the opinion does not comply with the requirements laid down in Mellor.”

In Kenyon, Coulson LJ said, at [52], that Kenyon “was not a case that was remotely close to the extreme facts in Bateman”.

Mackman v. Secretary of State for Communities and Local Government [2015] EWCA Civ 716 concerned a negative screening opinion in relation to a proposal to build 73 homes in Great Dunmow in Essex. Conditional planning permission for the development had been granted by a planning inspector. The planning officer who had given the screening opinion had said:

“…The proposals would have an impact on the character of the area. However indicative plans submitted indicate that the proposals would aim to limit the impact by retaining the majority of the mature trees on the site and existing landscaping.

It would be unreasonable, therefore, on the evidence available at this stage to suggest that the likely effect on the environment would be “significant” enough to justify the requirement of an EIA taking into account the characteristics of the development.

…

…none of the site is located within a geographically sensitive location although the site is located adjacent to a County Wildlife Site.

In summary, it would be unreasonable, therefore, on the evidence available at this stage to suggest that the likely effect on the environment would be “significant” enough to justify the requirement of an EIA taking into account the location of the development.

…

The Council has in making the above professional judgments, assessed the potential significant effects of the development…

On the evaluation of the information submitted by the applicant, and the Council’s knowledge of the local area and its environment, bearing in mind that it is not required to have full knowledge of every environmental effect, it is considered that the proposed development is not likely to give rise to significant environmental effects on the environment. An Environmental Impact Assessment (EIA) is therefore not required for the proposed development shown on the submitted drawings by the applicant.”

On the question of the adequacy of the officer’s reasons, Sullivan LJ (with whom Patten LJ and Roth J agreed) said, in circumstances where the relevant regulations required “full reasons” to be given (see [16] of the judgment):

“18.

[Counsel for the appellant submitted that, as] in Bateman, there was no clear statement of [the officer’s] reasons for her conclusion that the proposed development was not likely to have significant environmental effects. The “reasons” amounted to no more than a bare conclusion.

19.

While there is some force in this submission, the circumstances of this case are very different from those in Bateman. In Bateman the screening opinion had concluded (unsurprisingly) that the main impacts of a proposal to expand a grain storage facility with a capacity of 90,000 tons in 12 silos to a capacity of 300,000 tons in 60 additional silos each about 18 metres high and 23 metres in diameter, were likely to be “increase in traffic movements, landscape impact and noise disturbance to local residents” (see paragraph 6 of the judgment of Moore-Bick LJ). In those circumstances, an explanation as to why those impacts on the environment were not likely to be significant was called for, and was not contained in the screening opinion.

…

21.

The adequacy of the reasons given by [the officer] for her conclusion that the proposed development was not likely to have significant environmental effects must be considered in the context of the answer to the first ground of appeal: that on a fair reading of the screening opinion Mrs Denmark did not fail to have regard to the issue of cumulative impact, or any of the other factors identified in Schedule 3. She did have regard to them, but having considered them she concluded that only one matter - the visual impact of a significant element of built form within a rural area - might have been capable of justifying a conclusion that there would be a significant environmental impact, but concluded that it did not. Unlike Bateman, there is nothing in this screening opinion which cries out for further explanation. A fair summary of this screening opinion is that it tells the reader that there is nothing about the characteristics of this particular development, its location, or the characteristics of its potential impact, which would justify a conclusion that it was likely to give rise to significant environmental effects. On the particular facts of this case, the reasoning, albeit brief, is not inadequate, bearing in mind the function of the screening opinion as described in Bateman.”

In R (oao Birchall Gardens LLP) v. Hertfordshire CC [2016] EWHC 2794 (Admin), Holgate J explained:

“79.

If a screening opinion is inadequately reasoned in breach of regulation 4(7) a challenge to a decision by the Secretary of State would fall under section 288(1)(b)(i) of the Town and Country Planning Act 1990 and so a claimant would not have to demonstrate under section 288(5)(b) that his interests had been substantially prejudiced thereby. Nonetheless, matters going to the absence or presence of prejudice would be relevant to the issue of whether the court should exercise its discretion by quashing the decision (Mackman at paragraph 23). Although section 288 does not apply to the present type of challenge, I see no reason why as a matter of principle the approach should be any different in an application for judicial review against a screening opinion of a local planning authority.

80.

In the Lea Valley Regional Park case Dove J identified at paragraph 71 two purposes of the obligation to give reasons: first, to enable a participant to understand why a negative screening opinion has been issued so that representations might be made to the Secretary of State in an attempt to persuade him to come to the opposite conclusion (e.g. regulation (4)(8) of the EIA Regulations), and second, so that a participant can see whether the screening opinion was tainted by a public law error and a legal challenge may be brought. Mr Maurici QC accepted that in the present case the first purpose was not engaged.

…

82.

…Mr. Maurici QC accepted that this challenge is based solely upon the second purpose of the obligation to give reasons, to which the principles laid down in Save Britain’s Heritage v. Number 1 Poultry Ltd [1991] 1 WLR 153, 168 and South Bucks DC v. Porter (No. 2) [2004] 1 WLR 1953 apply. Thus, the burden lies on the Claimants to show that the shortcoming in the reasons stated “is of such a nature that it may well conceal” a public law error. It is for the Claimants “to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision” (see Save). Lord Brown summarised the position in South Bucks at [paragraph 36].

83.

Mr Maurici QC emphasises that the obligation in regulation 4(7) if the EIA Regulations is to give “clearly and precisely the full reasons” for the opinion and to do so in a written statement accompanying the opinion. But he does not deny that in relation to regulation 4(7) the Courts have continued to apply certain of the principles laid down in cases dealing with the earlier legislation.

84.

Thus, in line with Save and Porter the principle remains that the level of detail required in a screening opinion depends upon the complexity, or otherwise, of the issues to be considered in the instant case, so that the test is whether the reasons given are adequate in relation to the particular application before the authority. Accordingly, in some cases it is acceptable for the reasoning to be brief (see Mackman at paragraphs 20 to 21). It is also necessary for the court to have in mind the legal context. The planning authority is not issuing a decision letter in a planning appeal which needs to resolve “the principal or important controversial issues”, but is issuing a screening opinion for the narrower purpose identified in Bateman and Mackman (see paragraph 66 above).

85.

In judging the adequacy of stated reasons, for example whether it is likely that a particular factor not expressly mentioned in the reasons was disregarded, the context in which the screening opinion was prepared is relevant (Mackman at paragraph 10)…”

Considered in isolation, the decision letter and Checklist 10B contain no reasons for the decision. In relation to both Historic Impact and Landscape, substantially all the decision-maker does in Checklist 10B is to set out factual matters, such as that investigations have been made and design steps have been taken, and then he immediately jumps to a “no impact” conclusion. As it also happens, when listing factual matters, the decision-maker only refers to some, but not all, of the high sensitivity areas. He does also expressly refer to assessments provided by Ms Turner and Mr Gray.

In the case of screening opinions, the court can, however, look much wider afield for a decision-maker’s reasons. Mellor expressly permits that (see Bateman at [10], [21]). As Holgate J explained in Birchall at [85], the court must also take into account the context in which the decision is made. Inference is also permissible (see Bateman at [28]). This approach is not inconsistent with South Bucks, where Lord Brown noted that the court will not too readily infer that a decision-maker has fallen into error, and where the Judge also pointed out that a reasons challenge will only succeed if a claimant has been substantially prejudiced by a decision-maker’s failure to give adequate reasons.

When considering a decision-maker’s reasons, the court should also keep in mind that reasons will be considered by informed parties (see South Bucks at [36]). A benign approach to a decision-maker’s reasons is particularly justified when screening opinions are given, at least generally, because planning authorities will ordinarily consider environmental factors at the planning permission stage (see Bateman at [20] and Mackman at [21]), albeit that, in this case, most favourably to Lanchester, I have not applied this principle because, I understand, planning permission may not in fact be required for the forest, so that the Community Forest’s application for a screening opinion may be the only opportunity for a public body to consider the forest’s environmental impact.

Against this background, the court’s object, in a case such as this one (where, I understand, there is no opportunity to make representations to the Secretary of State), is to determine whether the information (the reasons) provided to an interested party allows that party to see whether proper consideration has been given to the possible environmental impact of the proposal (see Bateman at [21] and Birchall at [80], [84]).

I am satisfied that it is proper to infer, particularly from decision-maker’s reference in Checklist 10B to Ms Turner’s responses and Mr Gray’s 12 September 2024 assessment, immediately after his statement, separated by a semi-colon in each case, that the proposal is UKFS-compliant, that the decision-maker adopted Ms Turner’s and Mr Gray’s opinions about the forest. There is nothing to suggest that the decision-maker himself assessed whether the forest is UKFS-compliant. It is probable that he adopted Ms Turner’s and Mr Gray’s opinion on that issue, so that it is also probable he adopted their opinions more generally, there being nothing to suggest otherwise.

I have already concluded that Ms Turner and Mr Gray are likely to have appreciated that, by concluding that the forest is UKFS-compliant, they were indicating, in Ms Turner’s case, that the forest protects significant and woodland heritage features and, in the case of both of them, that the proposal appropriately addresses the landscape. It is reasonable to infer that the decision-maker is also likely to have appreciated this, based on his own experience.

Ms Turner’s responses, in particular her 5 September 2024 response, engaged with the four matters of fact or preliminary judgment in issue in this case in relation to both cultural heritage and landscape; namely, (i) which areas of the location of the forest are environmentally sensitive, (ii) why that is so, (iii) what is their degree of sensitivity and (iv) what the proposers intend to do, if anything in the areas in question. Her conclusions, in particular in her 5 September 2024 response, were reasoned.

Mr Gray’s 12 September 2024 assessment was also reasoned, albeit much more briefly and more broadly.

Taking this analysis into account, I have concluded that Lanchester has had sufficient information to see whether proper consideration was given to the possible environmental impact of the forest, so that this ground fails too.

Mr Westaway submitted that, assuming always that the decision is rational taking into account all the material available to the decision-maker, if I was minded to quash the decision on the ground that (i) I could only look, for the decision-maker’s reasons, at the decision letter and Checklist 10B and (ii) the decision was not adequately reasoned as a result, as a matter of discretion I should decline to quash the decision because Lanchester has not been substantially prejudiced (see R (oao Champion) v. North Norfolk DC [2015] UKSC 52) or, perhaps just to put it another way, because it is highly likely that the outcome for Lanchester would not have been substantially different if the decision letter and Checklist 10B had been adequately reasoned (see s.31(2A) of the Senior Courts Act 1981 – albeit that, subject to s.31(2B) of the Senior Courts Act 1981, the refusal of the grant of a remedy is mandatory if the conditions in the sub-section are made out). (Footnote: ¹⁹) In Champion, Lord Carnwath said, in relation to the case before the Supreme Court:

“59.

…I have no doubt that we should exercise our discretion to refuse relief in this case. In para.52 of its judgment, the Court of Appeal summarised the factors which in its view entitled the authority to conclude that applying the appropriate tests, and taking into account the agreed mitigation measures, the proposal would not have significant effects on the SAC. That, admittedly, was in the context of its consideration whether the committee arrived at a “rational and reasonable conclusion”, rather than the exercise of discretion. However, there is nothing to suggest that the decision would have been different had the investigations and consultations over the preceding year taken place within the framework of the EIA Regulations.

60.

This was not a case where the environmental issues were of particular complexity or novelty. There was only one issue of substance: how to achieve adequate hydrological separation between the activities on the site and the river. It is a striking feature of the process that each of the statutory agencies involved was at pains to form its own view of the effectiveness of the proposed measures, and that final agreement was only achieved after a number of revisions. It is also clear from the final report that the public were fully involved in the process and their views were taken into account. It is notable also that Mr Champion himself, having been given the opportunity to raise any specific points of concern not covered by Natural England before the final decision, was unable to do so. That remains the case. That is not to put the burden of proof on to him, but rather to highlight the absence of anything of substance to set against the mass of material going the other way.

…

62.

For the reasons given, I would dismiss the appeal…Although the proposal should have been subject to assessment under the EIA Regulations, that failure did not in the event prevent the fullest possible investigation of the proposal and the involvement of the public. There is no reason to think that a different process would have resulted in a different decision, and Mr Champion’s interests have not been prejudiced…”

This is clearly a case where it would not have been appropriate for Lanchester’s reasons challenge alone to succeed just because, in the scenario posited by Mr Westaway, the court’s decision is confined to considering the content of the decision-letter and Checklist 10B themselves. I have already concluded that the decision was not unreasonable, that the decision-maker adopted Ms Turner’s and Mr Gray’s opinions and that the decision was adequately reasoned taking them into account. The outcome for Lanchester would not have been different had those opinions been incorporated in Checklist 10B itself and Lanchester, having been provided with Ms Turner’s and Mr Gray’s documents, has not been prejudiced because their contents have not been incorporated in Checklist 10B.

As it is, for the reasons I have given, I dismiss the claim.

APPENDIX 1