Welsh council saved from judicial review after coal mine closes
Campaigners who threatened a judicial review over an alleged failure by Merthyr Tydfil County Borough Council to stop a coal mining operation after its planning permission expired have withdrawn their legal challenge.
Coal Action Network (CAN), which had support from the Good Law Project, ended its judicial review challenge against the local authority and the Welsh Government over operations at the Ffos-y-Fran coal mine after the mine owner announced the mine would close.
In June, barristers James Maurici KC (Landmark Chambers) and Toby Fisher (Matrix Chambers) advised in an opinion that CAN should press the council and the Welsh Ministers to serve a stop notice as a matter of urgency and/or to explain what other mechanism they intended to use to ensure that unauthorised coaling is brought to an end immediately.
“Should the Council and Welsh Ministers refuse to do so, we will advise on the merits of judicial review, including interim injunctive relief. In the abstract, and without knowledge of any special circumstances that might be revealed in correspondence, we consider that such a claim would have reasonable prospects of success.”
The barristers added that, as for the council’s and Welsh Ministers’ eight-and-a-half month delay in issuing an enforcement notice, “we doubt there is much to be gained through litigation at this stage”.
However, they advised CAN to consider referring the matter to the Public Services Ombudsman for Wales. “In our opinion, the collective failure to take prompt, meaningful action against the breach of planning control constitutes maladministration for the purposes of the Public Services Ombudsman (Wales) Act 2019. The Ombudsman has previously investigated complaints relating to failures to take effective enforcement action and has made recommendations for compensation.”
Planning permission for the extraction of coal on the site – which has been used as a coal mine since 2005 – expired in September of last year. However, the coal mining firm, Merthyr (South Wales) Limited (MSWL), continued to extract coal from the site in breach of planning control, the barristers claimed.
In May of this year, an enforcement notice was served with compliance required by 22 July 2023. A stop notice has never been served on the firm.
A pre-action protocol letter was sent by CAN in July 2023, claiming the failure of the council and Welsh Ministers to decide whether it was expedient to serve a stop notice was unlawful.
The firm has now decided to stop operations on 30 November 2023.
Commenting on the firm's decision, a spokesperson for the Good Law Project said: "Now that the company has announced a date for mining to stop, Coal Action Network has withdrawn this challenge.
“But we're not taking Merthyr's word for it. This company has already extracted more than 443,000 tonnes of illegal coal since planning permission came to an end. This isn't over until the mine is actually shut.
"We will continue to keep a close watch on what is happening at Ffos-y-Fran and are ready to take further action if needed. At the heart of this action is a community whose health and wellbeing have been put at risk by dirt and disruption from this mine for more than 15 years.”
Adam Carey
