Claimants to urge High Court to reconsider refusal of permission for statutory review over coal mine planning decision

Claimants are set to ask the High Court to reconsider its refusal to hear a legal challenge to the Government's decision to grant planning permission for a new coal mine in Cumbria.

Two separate claims were lodged by Friends of the Earth and South Lakes Action on Climate Change (SLACC) early this year, which featured grounds that argued the Government did not consider the international precedent that opening a new mine would set and the impact of opening the mine on the global coal market.

But Sir Ross Cranston refused permission for both claims on the papers by different refusal decisions.

The dispute centres around a decision by the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, to call in and grant a planning application for the mine in December 2022.

In a decision letter detailing his decision, Gove wrote that he agreed with a planning inspector's report, which found 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.

Both Friends of the Earth and SLACC then launched separate legal challenges to the decision.

In its ensuing letter before claim, SLACC set out four grounds of argument, leading with a claim that the decision failed to grapple with or adequately explain how the mine's coal would 'substitute' for existing coal used in steelmaking in the UK, as claimed by the developer.

Estelle Dehon KC and Rowan Clapp of Cornerston Barristers are representing SLACC. In a press release, the chamber detailed all four grounds of argument.

The second ground argued that Gove "failed to grapple with key evidence from experts in climate diplomacy that opening the proposed mine would seriously undermine the UK's reputation as a global leader on climate change and its ability to secure agreement on reducing and addressing emissions moving forward".

"Third, that the Secretary of State engaged in a series of legal errors arising from a misunderstanding of the Court of Appeal's decision in R(Finch) v Surrey County Council [2022] such that he failed to take into account the proposed mine's 'downstream emissions' (effectively the combustion of the coal) as a significant indirect effect."

The fourth ground contended: "[That] the Decision disclosed a disparity of treatment in respect of the parties' cases in that an uneven standard was applied to the evidence and submissions of the parties, with SLACC's case being required to be proved to an unfairly high standard (and associated errors)."

Commenting on the High Court's decision to refuse the legal claim, Carole Wood, Chair of SLACC, said: "We are disappointed with this decision, but we and our legal team are firmly of the view that there are legal errors in the Government's decision to permit the mine."

Friends of the Earth also brought four grounds in its challenge, leading with a claim that Gove's conclusion that the mine would be net zero for the purposes of the Government's sixth carbon budget due to the mining company's legal agreement to buy international carbon offset credits to offset emissions from the mine was wrong.

Ground two contended that the granting of a coal mine would undermine both the UK's global reputation and its ability to influence others to increase mitigation ambition.

The third ground alleged that Gove failed to recognise expert evidence that said anything less than 'perfect substitution' of the mined coal would result in a significant increase in global emissions from the combustion of coal.

The fourth and final ground claimed Gove did not consider that the downstream emissions needed to be included in the development's environmental impact assessment.

Commenting on the refusal, Friends of the Earth campaigner Tony Bosworth said: "This isn't the decision we had hoped for, but it isn't the end of the line. We still believe that giving the go ahead to the Whitehaven coalmine was unlawful and we will be asking the court to reconsider its decision.

"Opponents of the mine raised critically important, climate-related questions in the planning inquiry, but these were either fudged or avoided. With the world in an accelerating climate crisis, these issues cannot be ignored."

In refusing both challenges, Sir Ross Cranston ordered that any renewed application by the parties should be heard jointly and asked the parties to coordinate in the way it is presented.

A spokesperson for the Department for Levelling Up, Housing and Communities 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.

“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 given ongoing legal proceedings.”

Adam Carey