Advice to Osborne Clarke

Enquiry

• From: Osborne Clarke
• Date advice given: 10 October 2012
• Enquiry type: Phone

The caller requested advice and direction to guidance on the Compulsory Aquisition (CA) of Forestry Commission land.

Advice given

The most relevant guidance to your query would be the CLG "Guidance Related to Procedures for Compulsory Acquisition" (available at: http://www.communities.gov.uk/documents/planningandbuilding/pdf/guidancecompulsoryacquisit.pdf).

It is likely in most cases that the Forestry Commission (FC) or the Forestry Commission Wales (FCW) are not the owners of the forest which they manage. Their principal statutory function under the Forestry Act 1967 is the management of the forests for which they are responsible; ownership therefore generally rests with the relevant Government department or the Welsh Ministers for land in Wales.

On this basis, the forests would be considered a "Crown interest", pursuant to s227(2) of the Planning Act 2008 (the 2008 Act), since they are an "interest belonging to a government department or held in trust for Her Majesty for the purposes of a government department", as set out in s227(3)(b). Therefore, for the purposes of the 2008 Act, such forests are "Crown Land".

As such, the land is subject to s135(1) which would prevent the inclusion of provisions authorising the CA of any FC or FCW lands since they are being held by or on behalf of the Crown. Further to this, under s135(2) of the 2008 Act a DCO may include any other provision in relation to such land only if "the appropriate Crown authority" consents to the inclusion of such provision in question. The appropriate Crown authority is defined by s227(5), and in this case would generally by either the relevant Government department or, in Wales, the Welsh Ministers (see s227(5)(f) of the 2008 Act).