Council delay in enforcement was unlawful and allowed coal mining operations to continue months after planning permission expired, barristers claim

A delay by Merthyr Tydfil Council and the Welsh Government to take enforcement action against a coal mine that allegedly continued operations months after its planning permission expired has set a "terrible precedent" and sends a message to mine operators that the planning system can be "gamed," barristers have said.

In an open letter encouraging a judicial review, barristers James Maurici KC (Landmark Chambers) and Toby Fisher (Matrix Chambers) wrote that the delay in tackling the breach of planning control at Ffos-y-Fran coal mine could be unlawful and constitutes maladministration.

Planning permission for the extraction of coal on the site – which has been used as a coal mine since 2005 – expired in September of last year. However, the coal mining firm, Merthyr (South Wales) Limited (MSWL), continues to extract coal from the site in breach of planning control, the letter states.

In May of this year, an enforcement notice was served with compliance required by 22 July 2023. No stop notice has been served on the firm.

In a statement, a spokesperson for the Welsh Government confirmed that the firm has now submitted an appeal against the enforcement notice.

Such an appeal means that the notice will not take effect until the determination of the appeal, "which, on current timescales, may take around 12 months," the letter warned.

"Consequently, in the absence of a stop notice, the Council and the Welsh Ministers may have enabled MSWL to extract coal, without permission but without consequence, for more than 18 months," it added.

The total emissions attributable to 18 months of unlawful coaling at the mine are in the region of 2 million tonnes CO2eq, the equivalent of the emissions of 155,000 people in Wales over the same period, according to the letter.

The letter claims that the extraction of the coal and the associated emissions "are the result of a mining company choosing to act unilaterally and unlawfully".

It said the approach adopted by the council and the Welsh ministers will lead to no consequence for the "unauthorised and unconstrained activity and no deterrent effect to dissuade future operators from acting in the same way".

The council and the Welsh ministers have "treated a breach of planning control related to the extraction of coal in the same way they would treat a breach of planning control related to the erection of an unauthorised building," the letter states.

"These are, however, fundamentally different things. The planning harm caused by an unauthorised building can be remedied by the building's ultimate removal."

But the planning harm caused by the coal extraction is irreversible as the coal cannot be put back in the ground, and the carbon emissions from burning the coal cannot be removed from the atmosphere, the letter argues.

The two barristers wrote that it is arguable that the council's and Welsh ministers' eight-and-a-half-month delay in taking enforcement action was unlawful. It also claimed it is "strongly arguable" that it would be unlawful for the council and/or Welsh ministers to fail to serve a stop notice by the date on which the enforcement notice is due to take effect.

The letter added: "Irrespective of the lawfulness of the Council's and Welsh Minister's past and future exercise of their enforcement functions, it is clear to us that their failure to take urgent and decisive enforcement action against the breach of planning control in this case constitutes maladministration and sets a terrible precedent."

A spokesperson for Merthyr Tydfil County Borough Council said: “We have a contrary legal view of the situation. It is not appropriate to comment any further in light of potential litigation.”

When asked for comment, a spokesperson for the Welsh Government said that making any comment at this stage “may jeopardise any future decision Welsh Ministers may have to make on the matter”.

Merthyr (South Wales) Limited has been approached for comment.

Maurici KC and Fisher were asked for their opinion on the situation by climate campaign group Coal Action Network.

Adam Carey