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High Court gives green light for judicial review of expansion of coal mine in Wales

A High Court judge has given permission for a judicial review challenge against the Welsh Government and the Coal Authority over a decision to approve the expansion of a coal mine.

The claimant, Coal Action Network (CAN), is accusing the Coal Authority of misinterpretation of legal powers and Welsh Ministers of an error in deciding that a section in the Coal Industry Act 1994 could not be engaged to stop the expansion.

Energybuild Mining Limited has operated the coal mine, Aberpergwm Colliery in Neath Port Talbot, since 2004 and was given planning permission to expand the mine in 2018.

After the operator received planning permission to expand the mine, it applied for a full operational licence for the expanded area from the Coal Authority in September 2020.

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As part of this determination process, the Coal Authority said it engaged with the Welsh Government for any direction they would wish to give under the Wales Act 2017.

But on 10 January 2022, the Welsh Government informed the Coal Authority that Welsh ministers would not be making a determination in the case.

The Coal Authority said it then approved the application on 25 January 2022 as it had a legal duty to do so.

The Welsh Government insisted it could not use its powers under the Wales Act 2017 to stop the coal mine expansion because the licence pre-dates the Wales Act 2017 coming into force.

CAN argues that their barrister's pre-action letter "convincingly puts the power to stop the Aberpergwm colliery extension licence firmly in the hands of Welsh Government Ministers".

It added: "Our pre-action letter also identifies why The Coal Authority, hosted by BEIS of the UK Government, isn't bound by the narrow set of criteria it claims to be, and could, for instance, site climate change as a reason to withdraw this licence and reject future coal mining licence applications, becoming an ally to our climate commitments rather than an undermining force."

The High Court has given CAN permission to bring a judicial review on the following grounds:

  1. Welsh Ministers can apply the Wales Act 2017 to the Aberpergwm coal mine extension licence - requiring approval from Welsh Ministers before the licence becomes valid for coal mining within Wales.
  2. The Coal Authority misinterprets its own powers. It can consider wider factors which could include climate change, and can still withdraw the licence for the Aberpergwm colliery extension prior to it being 'granted' (it is currently only 'offered').

On the group's Crowd Justice page, it said the decision could impact and potentially discourage future applications, "including the three other coal mines/extensions still being considered in the UK".

The Welsh Government declined to comment on the legal proceedings.

Adam Carey

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