Extraction of 40 million tonnes of coal found to be lawful

Mining Engineer Canva

R. (Coal Action Network) v (1) The Welsh Ministers and (2) The Coal Authority

The High Court (Steyn J) has dismissed a challenge by the Coal Action Network (“CAN”) against two decisions concerning the discharge of conditions on the licence to mine coal at Aberpergwm Colliery in the Vale of Neath. The effect of these decisions was to permit the extraction of c. 40 million tonnes of coal over an area of 1,131 hectares.

The first decision under challenge was the Coal Authority's decision to discharge the conditions on the licence. CAN alleged that the Coal Authority had unlawfully fettered its discretion and failed to take into account a number of material considerations, including the potential climate change impacts of extracting the additional coal.

The second decision under challenge was the decision of the Welsh Ministers that they were unable to exercise the power in s. 26A of the Coal Industry Act 1994 (“CIA 1994”), which was enacted by amendment in 2017. That power allows the Welsh Ministers to decide whether a licence to extract coal in Wales granted by the Coal Authority should have effect.

On the first decision, Steyn J held that the Coal Authority had not unlawfully fettered its discretion or failed to take into account any material considerations.  The Coal Authority’s task, consistent with the analogous and established position under the Town and Country Planning regime, was restricted to considering whether the conditions on the licence should be discharged.  The Coal Authority was not permitted to go back on the principle of extraction that had been established when the licence was granted on a conditional basis in 1996.  Accordingly, the Coal Authority had properly understood and undertaken its decision to discharge the conditions.

On the second decision, Steyn J held that s. 26A CIA 1994 did not apply in the instant case and thus the Welsh Ministers had properly interpreted its statutory powers.  The power in s. 26A does not apply to a conditional licence granted before the enactment of s. 26A in 2017, even when conditions are discharged after 2017.

The claim is of note as there is limited jurisprudence on the Coal Authority’s functions under the CIA 1994 outside of disputes concerning subsidence. This was the first case to consider the manner in which conditions on existing licenses under the CIA 1994 should be considered and discharged.

The claim is also of note because it is the first case to consider the ambit and effect of s. 26A CIA 1994.

Matthew Henderson acted for the Coal Authority.

The judgement can be read here.

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