After my last post, a the letter I wrote earlier this week to the Directors of England’s tree planting programme, I received a prompt, if completely unsatisfactory response, this time blaming Covid for their failure to reach a decision on the South Field, County Durham native woodland scheme. So I thought I would compile the whole set of correspondence on the appeal, going back to December 2022. I have sent this to the Director for Natural Environment, Trees and Landscapes at DEFRA. Mr Barker is a civil servant, not a politician. I don’t know how he’ll respond to this, if at all, but I think it speaks for itself, so I no offer no other comment. Readers will make their own minds up.
To Mr Edward Barker, Director for Natural Environment, Trees and Landscapes, DEFRA
South Field, Edmundbyers, County Durham: Appeal against Forestry Commission.
Case History to date 12th September 2023
Your ref: [none existing]
On 11th December 2022 I submitted an appeal against a Forestry Commission decision to prevent the planting of 4ha of native trees at South Field, Edmundbyers, County Durham.
I received no acknowledgement of the appeal submission. I am not aware that the case has ever been assigned a reference number; I have not seen one.
Correspondence history (my highlighting)
I wrote directly to the minister on 9th January 2023, having no other correspondence address available, as follows:
Dear Minister,
I wrote to you on 11th December to formally appeal a Forestry Commission decision under the EIA (Forestry) Regulations 1999 (as amended) under Regulation 17.
The scheme that the FC have rejected is a 4.3ha native woodland project with public access and community education, at South Field, Edmundbyers, County Durham NZ 010494.
I have not so far received an acknowledgement of receipt for my appeal and you will understand that I am anxious to know something of its progress. As I understand it, the procedure is limited to 56 days from receipt. I would be most grateful for a response.
A response came on 13th January:
Dear Max,
Thank you for your emails which Minister Harrison’s Parliamentary team have passed to Defra. I can confirm receipt of both the message below from 9 January and your earlier message of 11 December.
I can assure you that you will be notified of Minister Harrison’s decision once one has been made, but I’m afraid I am unable to give a more concrete timeline at this point.
Best wishes,
Jack (Mitchell) PS to Trudy Harrison MP
On 23rd February I wrote again, as follows:
Dear Jack,
thank you for your email. I would be grateful if you could provide me with a precise timeline: when were the FC contacted for their response and when, if at all, they have responded. The statutory periods are outlined in the EIA Appeals regulations: 28 days from appeal for the FC to respond; 28 days thereafter to final judgement.
Kind regards,
Max
On 24th February I received the following response:
Hi Max,
I’m sorry for the delay in handling your case, owing to some complexities in attachments going awry during email forwarding, and the fact that I needed to seek guidance on how to process your appeal (this is the first one that has crossed my desk) the formal request to Forestry Commission wasn’t sent until 2 February, that means that Forestry Commission’s 28 days runs until 2 March.
I am working to ensure that your appeal is processed as quickly as possible.
Just for clarity, I am advised that the exact wording of the relevant regulations is as below. While I of course apologise in getting your appeal processing started, and as I said it started on 2 February, I am advised that Defra and Forestry Commission are in compliance with the regulations.
Again I’m sorry for the initial delay, but things are in train now.
Best wishes,
Jack.
Regulation wording:
“On receipt of a notice of appeal duly made, the appropriate Authority shall send a copy of it to the Commissioners who shall, within 28 days beginning with the date of receipt by them of the notice of appeal supply to the appropriate Authority copies of any representation or information provided to them in relation to the application”
And then
“The appropriate Authority shall determine an appeal within 28 days (or such longer period as it reasonably may require) beginning with the date of receipt of the representations or information supplied”
I wrote again on 29th March (and I am now trimming the address lines, for brevity):
I note that tomorrow (30th March) will be 56 days from the date on which relevant material for my appeal was sent to the Forestry Commission.
I understand from the relevant regulation that normally a decision would be expected after 56 days; and that the Authority (DEFRA) might take as much longer as it may reasonably require.
I would appreciate some idea from you of when I might expect a decision. The length of the process – now substantially more than two years is – as you will imagine, causing distress, incurring yet more costs and preventing me from developing any plans for the land in question.
The response on 31st March was:
I understand that Defra policy officials are currently in the process of producing advice for Ministers on this case.
I wrote again on 16th May:
It is now almost five months since I submitted my appeal against the Forestry Commission’s decision against the South Field scheme. I last heard from you on 31 March.
I wonder if you could give me some idea when a decision will be made.
… and then again on 16th May:
Could you acknowledge receipt of my letter of last week, please.
Mr Mitchell replied on the same day:
I am sorry we haven’t yet brought your case to a resolution, I have raised its progress again with senior officials and I am advised that the delay has been due to the complexity of the case. I have asked for an indicative timeline for when Minister Harrison might receive your appeal for decision and I will advise you as soon as I have more information.
Please rest assured that I share your frustration and I am doing everything I can to speed things up.
On 15th June I wrote again, requesting clarity about the process and detailed information on the process. I received no response.
On 16th July, having failed to elicit any further communication or response to my emails, I wrote to the Service-Standards Adjudicator:
Dear Adjudicator,
In December 2022 I formally submitted an appeal against a decision by the Forestry Commission which prevents me from planting a native woodland and from obtaining a grant to support my proposed planting scheme (originally proposed in Autumn 2020) for four hectares in County Durham.
I received no acknowledgement of the appeal but was later able to establish contact with the Private Secretary (Mr. Jack Mitchell) to Trudy Harrison, the relevant minister. It seems the appeal paperwork was not properly completed and sent to the FC for a response until two months later, on Feb 2nd.
This from Mr Mitchell on Feb 24:
Hi Max,
I’m sorry for the delay in handling your case, owing to some complexities in attachments going awry during email forwarding, and the fact that I needed to seek guidance on how to process your appeal (this is the first one that has crossed my desk) the formal request to Forestry Commission wasn’t sent until 2 February, that means that Forestry Commission’s 28 days runs until 2 March.
I am working to ensure that your appeal is processed as quickly as possible.
Just for clarity, I am advised that the exact wording of the relevant regulations is as below. While I of course apologise in getting your appeal processing started, and as I said it started on 2 February, I am advised that Defra and Forestry Commission are in compliance with the regulations.
(Incidentally, I don’t much like the ‘Hi Max’ form of address: this is formal government business and I expect basic courtesies).
I expected due process to be completed 28 days after March 2nd – i.e. in early April. I have more recently been told that the process and the case are complex (which seems unlikely in view of the extremely limited scale of the proposal) – hence the delay. There were ‘ongoing discussions’….
After six months had elapsed from the date of appeal, with no sign of a resolution or of any progress, I made the following request on 15th June 2023:
I would like answers, if possible, to the following:
- When was the last meeting or progress report relating to the appeal?
- When is the next scheduled meeting or progress report?
- Is there an established timescale for progress; and does the Government have a target date for a decision?
- What is preventing completion of or progress towards the Government’s response to the appeal?
- If there are currently no scheduled milestones by which a decision might be reached, in particular before the parliamentary recess on July 20th, my assumption is that no progress will be made in the foreseeable future.
I therefore request that you seek a ruling from a Government law officer rule on the question of whether I may submit a request for a summary judgement in my favour.
I have received no acknowledgement of, or response to, this email; I don’t think these are unreasonable requests.
Last week (now seven months into the process) I wrote again to Mr Mitchell asking if he could explain why I had not had any response to, or the courtesy of an acknowledgement of, my previous letter. I have as yet had no response to this either.
I wish, therefore, to formally institute a complaint against the minister/private secretary in question, with a request that some explanation for the extraordinary delay, or an outline of the due process going forward, be provided to me; or a ruling on whether I may apply for a summary judgement in my favour.
I have received an acknowledgement of the complaint; but no further response from the SSA.
On 18th July I received an email from Naomi Matthiessen:
Your email [below] has been passed to me by Trudy Harrison’s Private Office, as I am head of Defra’s Trees & Forestry Policy Team.
My team receives appeal cases such as these from Forestry Commission and works with Defra lawyers to provide advice to Ministers.
I can confirm that we have received this case from FC and are currently in the process of finalising advice with lawyers.
The case is progressing and there are processes in place to allow for decision-making over the recess period.
I responded on 19th July:
I should say that, since I received no acknowledgement of or response to my 15th June letter, nor the reminder I sent last week, I have already raised a formal complaint with the Service Standards Adjudicator.
You have not been able to answer any of my questions about process and timing or to explain why I have not received any previous response, so I see no reason, at this time, for withdrawing my complaint against the minister/private secretary. The responses I have had so far fall way below the professional standards that I expect in my own working practice. You say that processes are in place to allow for decision-making over the Parliamentary recess; but you do not indicate when I may expect a final result. We are now almost three years into this process and it is more than eight months since I submitted my appeal.
I look forward to receiving a response from the adjudicator in due course.
Naomi responded the same day (19th July):
Whilst we understand your frustration, I can assure you we are currently actively processing your appeal.
The last meeting with Defra lawyers was last week, at which the need for specialised legal resource was discussed, resource was identified and a route to progression agreed.
We expect the submission to the Minister for final decision to occur over the next month.
We are currently experiencing a higher number of appeals due to the uptick in afforestation applications over the last year. Unfortunately this has led to the longer processing times that you have experienced. We are working to ensure the process is concluded as quickly as possible to allow you to consider future options for your land.
To avoid prejudicing the process and the Minister’s ability to make a fair and balanced decision I’m afraid I can make no further comment at this time regarding the potential outcome of the case.
I heard nothing after that; so I wrote again on 11th September:
… another almost two months have passed since your last communication.
Three years (and planting seasons) have passed since I acquired South Field.
Two years have passed since I gained Stage 1 approval for my scheme.
Nine months have passed since I submitted my appeal to the FC’s rejection of the scheme.
While I am flattered that specialist lawyers should take an interest in such an apparently insignificant scheme, it is less flattering that no-one from your department deems it worth the courtesy to keep me informed of ‘progress’.
The impression I get, looking back through the episodic and confusing correspondence in this case, is of a very poor level of professionalism; or competence; or both. The Forestry Commission did not have a full grasp of their own processes; they insulted, threatened and patronised me. Natural England were grossly unprofessional in their dealings with me and both the RSPB and the AONB and everyone in between, have displayed ignorance, institutional cowardice and a fearful poverty of intellect.
If the government and its satellites are incapable of making a decision on a 4ha native tree planting scheme, one wonders… what hope for the planet?
I received the following reply the same day (11th September):
Many thanks for your email.
In terms of an update on your case, we should be putting advice to Ministers imminently, so I sincerely hope you will not be waiting much longer for a decision.
Unfortunately FC had a backlog of cases which built up during Covid and it has taken a long time to clear them. I know it will be of little comfort to you, but improvements are being made to the process and future issues should be dealt with much more quickly.
Finally, I have requested direct contact with Naomi’s line manager, Edward Barker, Director for Natural Environment, Trees and Landscapes, in this email of today, 12th September:
I am disappointed to receive your response. If you look back at the correspondence trail of the last nine months you will see how many different, and self-contradictory excuses I have been given for the failure to process my appeal. Covid-blaming seems like a last refuge.
You assured me that advice to the minister would NOT be slowed by the Summer recess; that she would be receiving submissions in August. Evidently, that was no more true than anything else I have heard: that my case was the first appeal against a forestry EIA decision; like the immense complexity of a 4ha scheme; like the specialist lawyers who needed to advise on it.
I have been unable to elicit any response to my complaint from the Services Standards Adjudicator, so there seems no hope of progress in that direction.
Might I have the name of your line manager so that I can make direct contact with them?
This summary forms the basis of my letter to him.
