Campaigners fail in High Court challenge to expansion of mining operations in Wales

The High Court has dismissed an attempt by an environmental group to block an expansion of coal mining in Wales.

In Coal Action Network, R (On the Application Of) v Welsh Ministers & Anor [2023] EWHC 1194 (Admin) Mrs Justice Steyn said that the Coal Action Network’s interpretation of the powers of Welsh Ministers and the Coal Authority was wrong.

Energybuild Mining holds a licence issued by the Coal Authority in 1996 for mining at Aberpergwm but work has not yet started on the disputed part of the site.

In September 2020, Energybuild applied to the Coal Authority for an underground coal mining operating licence by means of the ‘deconditionalisation’ of an existing conditional licence in respect of 1,131 hectares.

Coal Action Network, which opposes mining, argued the Welsh Ministers had been wrong to decide the Welsh Government lacked any power under s26A of the Coal Industry Act 1994, to either approve or refuse the mining planned by Energybuild's application.

It also challenged the Coal Authority’s decision to approve Energybuild's application, arguing the authority misinterpreted its powers and so unlawfully fettered its discretion and/or failed to take into account material considerations.

Steyn J said the Wales Act 2017 amended the Government of Wales Act 2006 by moving to a reserved powers model for Wales.

Section 26A was introduced in the context of that strengthening of the devolution settlement and f developing national and international policy to combat climate change, the judge noted.

She said the natural and ordinary meaning of the words where the Act used ‘licence’ and ‘authorisation’ meant these conveyed different meanings.

Although some of the language used favoured the network’s interpretation, “pulling strongly in the opposite direction, however, is the fact that interpreting section 26A as applying in a case such as this, where the licence containing the postponed authorisation was granted before section 26A came into force, gives the provision a degree of retrospective force”.

Steyn J concluded: “An ‘authorisation' for the purposes of section 26A includes an authorisation contained in a Part II licence which is postponed pursuant to conditions imposed in accordance with section 27(3)(a).

“The power does not apply if the licensee held the authorisation, or postponed authorisation, before section 26A came into force. Accordingly, the Welsh Ministers correctly decided that they had no power pursuant to section 26A to make a determination on Energybuild's application, and so I dismiss Ground 1 of the claim.”

Dismissing the second ground, Steyn J said the Coal Authority’s task was to determine whether the licence conditions for mining had been met.

She said: “I reject the claimant's contention that the Coal Authority misinterpreted its powers, and thereby fettered its discretion.”

A Welsh Coal Policy Statement, which seeks to avoid the continued extraction and consumption of fossil fuels, “was not capable of being regarded as relevant to the Coal Authority's limited task of determining whether the conditions precedent were satisfied.

“Nor were the adverse climate change impacts, and the effect on the Welsh Ministers' ability to meet their climate change targets, matters that were capable of being regarded as relevant to the determination whether the conditions precedent were satisfied.”

Mark Smulian