Court Upholds Forestry Commission's Clear-Felling Policy in Judicial Review Case

Citation: [2023] EWHC 3332 (Admin)
Judgment on


The case of Robert Zachery Cox, R (on the application of) v Forestry Commission deals with the judicial review of the Forestry Commission’s decision to continue clear-felling in the New Forest National Park and across England. The claimant, Mr. Cox, challenged the Forestry Commission’s refusal to review its clear-felling policy, alleging that it caused irreversible harm to nature and was disproportionate in any and all circumstances.

Key Facts

Mr. Cox sought judicial review after the Commission declined to review its clear-felling policy, claiming that the practice is detrimental to nature, specifically citing harm to the protected species, pine martens, and violations of his human rights. His application was initially refused by Calver J, who noted issues with the promptness of the claim and a lack of merit. The claimant renewed his application, distilling his original seven grounds into two broader grounds, focusing on the unlawfulness of the refusal to review the policy and the failure to provide details that would enable a challenge to ongoing clear-felling outside the New Forest Inclosures Forest Plan (NFIFP).

The principal legal issues at stake in this case involve the requirements for a justiciable review of policy application, the duty of a public body to act within statutory and policy frameworks, adherence to the proper process for engaging in pre-action correspondence, and the timing implications for bringing a judicial review claim.

The court applied several specific legal principles, including:

  • Promptness of Judicial Review: The judgment referenced R (Badmus) v SS for the Home Department [2020] EWCA Civ 657, emphasizing timeliness in challenging policies, and it was noted that the claim should have been made when the claimant first became affected by the measure in question.
  • Continuing Unlawfulness: The Arnold White Estates Ltd v The Forestry Commission [2022] EWCA Civ 1304 case was cited to reject the notion that ongoing correspondence could reset the timing for initiating judicial review.
  • Wednesbury Unreasonableness: The claimant’s assertion that the ongoing application of the clear-felling policy was no longer rational due to harm to animal species and other factors aligns with considerations of whether a decision is so unreasonable that no reasonable authority would ever consider it.
  • Duty to Review Policy: Mr. Semakula, representing the Forestry Commission, argued that there was no duty to review the policy outside its predetermined timeframe and that the brunt of the claimant’s challenge was against the clear-felling policy itself, which had been in place since 2017 and implemented by the NFIFP in 2019.


Mrs. Justice Cutts upheld the initial refusal, agreeing with Calver J’s assessment:

  • The claim challenged the underlying policy and not just its application or interpretation.
  • The challenge was not brought promptly, as required for judicial review, and no new material facts justified revisiting the issue.
  • The costs were awarded to the defendant, capped due to the claim being classified under the Aarhus Convention.


In conclusion, Robert Zachery Cox, R (on the application of) v Forestry Commission [2023] EWHC 3332 (Admin) showcases the importance of prompt action in judicial review cases, the necessity of clarity in identifying the real grievance in a challenge, and the impact of factual changes on the rationality of policy implementation. This case reaffirms that public bodies have latitude in the exercise of their statutory functions within a lawfully adopted policy and that not every policy decision is open to judicial review, especially if claims are not brought within an appropriate timeframe or without substantive new information.