Is planning permission required to change use from public open space to woodland/forest?

1. The starting point

Section 55 Town and Country Planning Act 1990 (TCPA90) defines “development”, development requires planning permission. It also identifies what is not development, and includes the following:

“(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

[…]

(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used”

The TCPA90 does not include a definition of “forestry” or “afforestation”, but the Forestry Commission guidance on “Environmental Impact Assessments for woodland” (dated 28 September 2021) (the Guidance) states:

“Afforestation means conversion of a non-woodland land use, for example agriculture, into woodland or forest (these terms are used interchangeably) by means of planting, or facilitating natural regeneration (self-sowing) of trees to form woodland cover. This can include proposals for short rotation coppice (SRC) and short rotation forestry (SRF), including energy crops and Christmas tree plantations.”

Paragraph (e) authorises changes of use from non-agricultural to agricultural uses: McKellan v Minister of Housing and Local Government (1966) 198 E.G. 683 (though a change back to the previous use may require planning permission).

A simple change of use from open space to the planting of trees to create woodland / forest is not therefore development and would not require planning permission.

2. Other planning considerations

If the change of use from open space to woodland / forest involves more than a simple change of use, for example extensive land sculpting or contouring then this might involve “development” as an engineering operation depending on the extent of the operations proposed. Planning permission may therefore be required. If the change of use forms part of a wider development scheme then it is likely that planning permission will be required for the entire scheme including the change of use.

The other matter to consider if is the open space is required to be kept open or accessible to the public, or laid out in a particular manner. These might be secured under any of the following:

• Condition on a planning permission
• Covenant in a s.106 TCPA90 planning obligation
• By-law
• Registration as a Town and Village Green

Depending on the likely significant effects on the environment of the afforestation project, an environmental impact assessment and Forestry Commission consent may be required. This is governed by the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999. The process is in two stages, an opinion or notification stage, and if required a consent stage. Projects that are likely to have a significant effect on the environment will require consent from the Forestry Commission before these can go ahead. The Guidance advises that afforestation projects of less than 0.5ha are considered unlikely to have significant effects on the environment, as are proposals between 0.5ha and 2ha not located in sensitive areas. An application for an opinion from the Forestry Commission can however, be obtained at stage 1 to confirm the position. The Guidance includes threshold tables for afforestation proposals of <0.5ha to >50ha.

3. Permitted development

Article 3 of the Town and Country Planning (General Permitted Development) Order 1995 states:

“planning permission is hereby granted for the classes of development described as permitted development in Schedule 2”.

Schedule 2, Part 6, “Agriculture and Forestry” includes Class E as follows:

“The carrying out on land used for the purposes of forestry, including afforestation, of development reasonably necessary for those purposes consisting of—

(a) works for the erection, extension or alteration of a building;

(b) the formation, alteration or maintenance of private ways;

(c) operations on that land, or on land held or occupied with that land, to obtain the materials required for the formation, alteration or maintenance of such ways;

(d) other operations (not including engineering or mining operations).”

If any of these activities are required in connection with the change of use to woodland / forest, then these activities will amount to “development”, but by virtue of Class E are “permitted development” meaning that no express planning permission will be required for these activities.

4. Further considerations

A change of use from land in agricultural use to a woodland / forestry use is gaining popularity in England. One of the principal reasons for this is guidance issued by Natural England (NE) that affects various parts of the country, for example the Somerset levels, the Solent and the Stodmarsh designated sites. The effect of the guidance is to prevent the grant of planning permission for new development involving ‘beds’ e.g. market and affordable housing, senior living, student accommodation, hotels and aparthotels unless ‘nutrient neutrality’ can be evidenced. This will need to be tested through the ‘appropriate assessment’ stage of the Habitats Regulations Assessment. If it cannot then NE assume an adverse effect on the integrity of a European Site from nitrates and /or phosphates arising from foul waste streams from the new developments. One way advocated in NE’s guidance for achieving ‘nutrient neutrality’ is the conversion of agricultural land into woodlands:

“Another option is to acquire, or support others in acquiring, agricultural land elsewhere within the Stour river catchment area. By changing the land use in perpetuity (e.g. to woodland, heathland, saltmarsh, wetland or conservation grassland), this reduces the nutrient loss from this source.” (paragraph 6.9 of Natural England’s “Advice on Nutrient Neutrality for New Development in the Stour Catchment in Relation to Stodmarsh Designated Sites - For Local Planning Authorities” November 2020)

If the change of use from agricultural land to woodland is to mitigate the impact of development on a designated site then it is likely that a local planning authority (LPA) will require the mitigation to be secured and delivered effectively. A s.106 TCPA90 planning obligation may be required to ensure that planting and woodland management take place, and that the woodland use is retained. If the woodland is not connected to a particular development, but is intended to provide nutrient ‘credits’ that developers can purchase for their development schemes then it is likely that the credits and a system of draw down and notification will also be secured.

Although planning permission for the change of use from agriculture or open space to woodland may not require planning permission, if the change of use is connected to mitigation, then it is likely to be secured by the LPA.