County council facing judicial review after deciding to refer planning application decision back to committee for fourth time

A mining company has launched judicial review proceedings against Cumbria County Council over the local authority's decision to refer a planning application for a new coal mine to committee for the fourth time.

Update: The Local Government Secretary, Robert Jenrick, has now called in the application. His reasons, which can be viewed here, include that there had been further developments since he originally had decided against such a move.

West Cumbria Mining (WCM), which has been working on the project since 2014, said the scheme had reached “a critical point, in that to allow the project to continue, the award of planning permission is essential and urgent”.

The company submitted its planning application to the county council in May 2017 and said it had subsequently received three successive resolutions to approve from the Development Control & Regulation Committee (DC&R).

It added that the Secretary of State for Housing, Communities and Local Government had twice formally considered calling in the application and had consistently declined to do so, “most recently in February 2021 after receiving representations about the Climate Change Committee (CCC) report published in December 2020”.

WCM said it had been just days away from the formal execution of the necessary s.106 agreement, which was with Cumbria CC for execution, having been signed by all other parties, and the issue of the final, formal planning permission.

The company said: “On the 9th of February 2021, to our shock, Cumbria CC formally issued to WCM (via email) notification that they had decided to refer the planning application back to committee for a fourth time, following a threat of legal challenge by Richard Buxton Solicitors on behalf of South Lakes Action on Climate Change (SLACC) and the issuance of the CCC report.

“At the same time as advising WCM, Cumbria CC issued a formal press release and wrote to local MPs confirming their decision. WCM strongly believes that the decision to return this to Committee again, at the eleventh hour and after comprehensive, extensive and prolonged consultation and consideration, cannot be justified and is based on a misunderstanding of the relevant law and facts.”

WCM said it had concluded that the only course of action was to explore legal options to secure the future of the project. It has instructed international law firm Hogan Lovells, “to take legal action on concerns that Cumbria CC ‘s decision-making process is robust and in accordance with the established framework”.

A pre-action protocol letter was issued but WCM said this had not resulted in a satisfactory response. Formal papers were lodged with the High Court on Friday (5 March) to commence judicial review proceedings in respect of the council’s decision to refer the matter back once again to committee.

The company said: “WCM believes that it has been placed in an impossible position, whereby Cumbria CC have failed to conclude the issue of the planning permission based upon the possible actions of campaign groups and the 6th carbon budget advisory report to the UK Government. WCM is already bound by planning conditions to ensure that operational GHG emissions are so low that they would be within any and all of the 4th, 5th and 6th carbon budget recommendations.”

Mark Kirkbride, its chief executive, said: “It is extremely regrettable that WCM has been placed in this position after committing so much time, resource and private funding to achieve a robust planning approval and social licence to operate. We were focussed on moving forwards positively in early 2021 with our investors to construct this project to deliver much needed jobs and economic investment into West Cumbria and across the North in the post Covid-19 recovery.

“The latest actions of the council have created a very real risk that the project will never be delivered, which would be devastating for West Cumbria, as well as the Northern Powerhouse and Industrial Strategy initiatives. I shall continue to do all that I can to deliver this project and the clear benefits it will provide.”

A county council spokesperson said: “We can confirm that a legal challenge from West Cumbria Mining has been submitted in respect of the Council’s decision to refer the planning application back to its Development Control and Regulation Committee. The council is unable to comment further whilst this legal process….is ongoing.”

In a statement on its website, SLACC said: “This looks like a desperate attempt by West Cumbria Mining to avoid the council properly considering new information about the climate impacts of the mine, including from the Government’s own expert advisors.

“Readers will recall that SLACC’s lawyers wrote to the council twice in January to suggest it needed to consider new information that had arisen since it last resolved to grant planning permission in October 2020. The council’s lawyers presumably advised them that this was necessary, and that issuing the decision without further consideration might be unlawful. Our council would not be in this difficult decision if Robert Jenrick had called in the decision, which is evidently of (at least) national importance.

“SLACC lawyers are now considering the situation, and in the meantime we will continue to prepare a ‘toolkit’ to help those who want to make representations to the planning committee in advance of the 29th and 30th April DC&R Meeting (in faith that this will still happen).”