High Court gives green light to judicial review of coal mine expansion in Wales

A High Court judge has allowed a legal challenge against the Welsh Government and the Coal Authority over a decision to approve the expansion of a coal mine.

The claimant, Coal Action Network (CAN), accuses the Coal Authority of misinterpreting statutory powers and the Welsh Ministers of error in deciding that a section of the Coal Industry Act 1994 could not be hired to stop the expansion.

Energybuild Mining Limited has operated the Aberpergwm Colliery colliery in Neath Port Talbot since 2004 and received planning permission to expand the mine in 2018.

After the operator received planning permission to expand the mine, it applied for a full operating license for the expanded area from the Coal Authority in September 2020.

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As part of this determination process, the Coal Authority said it had spoken with the Welsh Government for any guidance it would like to give under the Wales Act 2017.

But on January 10, 2022, the Welsh Government advised the Coal Authority that Welsh ministers would not make a decision in the case.

The Coal Authority said it then approved the application on January 25, 2022, as it had a legal obligation to do so.

The Welsh government has insisted it cannot use its powers under the Wales Act 2017 to stop the expansion of the coal mine, as the license predates the entry into force of the Wales Act 2017.

CAN argues that its solicitor’s pre-action letter ‘compellingly puts the power to stop the Aberpergwm mine extension license firmly in the hands of Welsh Government ministers’.

He added: “Our pre-action letter also identifies why the Coal Authority, hosted by the UK Government’s BEIS, is not bound by the narrow set of criteria it claims to be, and could, for example, consider climate change as a reason to revoke this license and reject future coal mining license applications, becoming an ally of our climate commitments rather than an undermining force.”

The High Court allowed CAN to bring judicial review on the following grounds:

  1. Welsh Ministers can apply the Wales Act 2017 to the Aberpergwm Coal Mine Extension License – requiring the approval of Welsh Ministers before the license becomes valid for coal mining in Wales.
  2. The Coal Authority misinterprets its own powers. It can take into account wider factors which could include climate change and can always withdraw the license for the Aberpergwm mine extension before it is ‘granted’ (it is currently only ‘proposed’ ).

On the group’s Crowd Justice page, he said the decision could have an impact and potentially discourage future applications, “including the three other coal mines/extensions still being considered in the UK”.

The Welsh government declined to comment on the legal proceedings.

Adam Carey