Residents group files proceedings challenging coal mine planning approval
A residents' group has issued proceedings in the High Court for a statutory review of a decision by Secretary of State for Levelling Up to green-light the construction of a new coal mine in Cumbria, marking the second legal challenge the Government is set to face over the decision.
Cumbrian residents' group South Lakes Action on Climate Change (SLACC) announced it filed proceedings for a statutory review last week (13 January) following an earlier announcement by Friends of the Earth, which detailed plans to file proceedings in a separate case over the decision.
Richard Buxton Solicitors sent a letter before claim on behalf of SLACC to the Secretary of State for Levelling UP, Michael Gove, in December, alleging that Gove's decision to grant West Cumbria Mining Ltd planning permission for a new underground metallurgical coal mine in Whitehaven, Cumbria misinterpreted the National Planning Policy Framework (NPPF).
The planning application for the construction of the new coal mine was first submitted by West Cumbria Mining Ltd in 2017 before being called in for decision by the Secretary of State in 2021.
The Planning Inspectorate was then called on to produce a report on the application, which upon publication in April 2022, recommended planning permission be granted.
Ultimately, the inspector concluded the development would not cause any "unacceptable impacts on ecology nor result in net loss in biodiversity" and that, on balance, the national, regional, local and community benefits of the proposed development would clearly outweigh the likely adverse impact.
Last month (7 December), Michael Gove published a decision letter detailing his decision to grant planning permission. He noted that he agreed with the inspector's conclusions and agreed to grant permission on the basis that a specific underground construction method be used, which was recommended in the inspector's report.
However, in its letter before claim, SLACC alleged that the planning inspector's report and the decision letter are "shot through with errors and examples of the Inspector (and thus the Secretary of State) either ignoring or cherry-picking evidence".
The letter went on to propose eight grounds of challenge, leading with a claim that the decision discounted the international impact of granting permission. According to the letter, the effects of granting permission on the UK's climate leadership "and the resulting use of the mine as a precedent for new coal mines around the world would be devastating for climate change".
A second ground set out in the letter alleged that there were errors of law in misunderstanding or misinterpreting paragraphs 152 and 217 of the NPPF.
The letter stated that the planning inspector misinterpreted the requirement in paragraph 152 that the planning system "support the transition to a low carbon future in a changing climate" and "should seek to shape places in ways that contribute to radical reductions in greenhouse gas emissions".
While the inspector's comment that "planning policy does not provide any restrictive approach to coal extraction" disclosed a "material misunderstanding of national policy" in relation to paragraph 217, according to the letter before claim.
The letter added: "Contrary to the Inspector's statement […], paragraph 217 of the NPPF is obviously 'restrictive' in respect of its approach to coal extraction. It begins 'planning permission should not be granted for the extraction of coal' before providing for two, limited exceptions which allow the prohibition to be disapplied. Paragraph 217 of the NPPF does, correctly understood, provide a restrictive approach to coal extraction."
Announcing the move to file proceedings on Friday last week, the group said it is now seeking four grounds of challenge rather than the eight set out in the letter before claim. The group is also seeking a quashing order as part of the statutory review.
"Our claim sets out the errors in law; the failure to give intelligible reasons, and the disparity of treatment between the parties that Mr Gove employed to arrive at this contradictory conclusion," the announcement adds.
SLACC has currently raised more than £32,000 in funds via a crowdfunding campaign.
A Department for Levelling Up, Housing and Communities spokesperson said: “The Secretary of State has agreed to grant planning permission for a new metallurgical coal mine in Cumbria as recommended by the independent planning inspector.
“This coal will be used for the production of steel and would otherwise need to be imported. It will not be used for power generation.”
It added: “The reasons for the Secretary of State’s decision are set out in full in his published letter, alongside the report of the independent planning inspector who oversaw the inquiry. It would be inappropriate to comment further on ongoing legal proceedings.”
Adam Carey
