The King (on the application of Coal Action Network) v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWHC 1194 (Admin) |
| Docket Number | Case No: CO/1168/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2023] EWHC 1194 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/1168/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
PLANNING COURT
Cardiff Civil Justice Centre
2 Park St, Cardiff, CF10 1ET
Estelle Dehon KC (instructed by Richard Buxton Solicitors) for the Claimant
Gregory Jones KC (instructed by Welsh Government Legal Services) for the First Defendant
Matthew Henderson (instructed by Browne Jacobson LLP) for the Second Defendant
The Interested Party did not appear and were not represented
Hearing dates: 15 and 16 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This claim for judicial review concerns the authorisation of coal-mining operations at Aberpergwm in the Vale of Neath. Energybuild Mining Ltd (‘Energybuild’) holds a licence which was issued by the Coal Authority in 1996 and subsequently varied, most notably in 2013. On part of the site, which is not the subject of this claim, coal mining operations have been authorised, and on-going for various periods, since 1997. But in respect of the area that is the subject of this claim, the licence is conditional and coalmining operations have not yet taken place. On 16 September 2020, Energybuild applied to the Coal Authority for the grant of “ an underground coal mining operating licence” by means of the “ deconditionalisation” of an existing conditional licence in respect of an area of 1,131 hectares (ref. CA11/DM/95/0025/1/C) (‘Energybuild's application’).
The claimant, Coal Action Network, is a small environmental campaign group whose aims include working for an end to coal extraction and coal use in power generation and steel production. The focus of their challenge is on two decisions, namely:
i) a decision of the first defendant, the Welsh Ministers, dated 10 January 2022, that it does not have the power, pursuant to section 26A of the Coal Industry Act 1994 (‘the 1994 Act’), to approve (or refuse) the authorisation of the coalmining operations that are the subject of Energybuild's application; and
ii) a decision of the second defendant, the Coal Authority, dated 25 January 2022, to approve Energybuild's application.
Permission to bring this claim was granted by Lang J on 17 June 2022. It gives rise to two points of statutory interpretation in respect of the 1994 Act. In short, the claimant contends that (a) the Welsh Ministers erred in law in deciding that section 26A of the 1994 Act was inapplicable (Ground 1); and (b) the Coal Authority misinterpreted its powers and so unlawfully fettered its discretion and/or failed to take into account material considerations in approving Energybuild's application (Ground 2).
Counsel for the claimant, Ms Estelle Dehon KC, made submissions on both grounds. For the defendants, counsel for the Welsh Ministers, Mr Gregory Jones KC, made submissions on Ground 1, and counsel for the Coal Authority, Mr Matthew Henderson, made submissions on Ground 2. I am grateful to all three counsel for their excellent written and oral submissions.
B. The Coal Industry Act 1994
The 1994 Act “ provides a comprehensive statutory scheme for the licensing and management of coal mining in the United Kingdom”: Abbey Mine Ltd v Coal Authority [2008] EWCA Civ 353, Laws LJ, [2]. Unless stated otherwise, all references in this judgment to a section are references to the 1994 Act.
Section 1 established the Coal Authority. Section 1(1) provides:
“There shall be a body corporate to be known as the Coal Authority (in this Act referred to as ‘the Authority’) for the purpose of –
(a) holding, managing and disposing of interests and rights in or in relation to the unworked coal and other property which is transferred to or otherwise acquired by it by or under this Act;
(b) carrying out functions with respect to the licensing of coalmining operations;
(c) carrying out functions with respect to coal-mining subsidence and in connection with other matters incidental to the carrying on of any opencast or other coal-mining operations;
(d) facilitating the establishment and maintenance of arrangements for the information to which persons are to be entitled under this Act to be made available to them; and
(e) carrying out the other functions conferred on it by virtue of this Act.” (Emphasis added.)
The duties of the Coal Authority with respect to licensing are specified in section 2, which provides:
“(1) It shall be the duty of the Authority to carry out its functions under Part II of this Act in the manner that it considers is best calculated to secure, so far as practicable –
(a) that an economically viable coal-mining industry in Great Britain is maintained and developed by the persons authorised by virtue of that Part to carry on coal-mining operations;
(b) that such persons are able to finance both the proper carrying on of the coal-mining operations that they are authorised to carry on and the discharge of liability arising from the carrying on of those operations; and
(c) that persons to whom obligations are owed in respect of subsidence damage caused at any time (whether before or after the passing of this Act) do not sustain loss in consequence of any failure by a person who is or has been a licensed operator to make such financial provision for meeting present and future liabilities as might reasonably have been required of that person.
(2) Subject to section 4 below, it shall be the duty of the Authority, in carrying out its functions under Part II of this Act, to have regard to the desirability of securing –
(a) that persons authorised by virtue of that Part to carry on coal-mining operations are persons who have at their disposal such experience and expertise in the carrying on of such operations as are appropriate for ensuring that any authorised operations are properly carried on; and
(b) that competition is promoted between differing persons carrying or, or seeking to carry on, coal-mining operations.
(3) …” (Emphasis added.)
Section 5(1) provides:
“(1) Subject to subsections (6) and (7) below, the Authority shall have power to do anything which, in the opinion of the Authority, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions.”
Subsections (6) and (7) provide, broadly, that the Coal Authority does not itself have power to carry on coal-mining operations or to explore for coal. Subsection (9) provides that subsections (2) to (5) (which identify certain matters that are within the Coal Authority's powers) “ shall be without prejudice to the generality of subsection (1)”.
Part II of the 1994 Act (ss.25 to 36) addresses the licensing of coal-mining operations. Section 25 provides, so far as relevant:
“ Coal-mining operations to be licensed.
(1) Subject to subsection (3) below, coal-mining operations to which this section applies shall not, at any time on or after the restructuring date [i.e. 31 October 1994], be carried on by any person except under and in accordance with a licence under this Part.
(2) This section applies to any coal-mining operations in so far as they—
(a) consist in the winning, working or getting (with or without other minerals) of any coal, in the treatment of coal in the strata for the purpose of winning any product of coal or in the winning, working or getting of any product of coal resulting from such treatment;
(b) are carried on in relation to coal in any part of Great Britain, in relation to coal under the territorial sea adjacent to Great Britain or in relation to coal in any designated area; and
(c) are neither carried on exclusively for the purpose of exploring for coal nor confined to the digging or carrying away of coal that it is necessary to dig or carry away in the course of activities carried on for purposes which do not include the getting of coal or any product of coal.
(3) Subject to the following provisions of this Act and to the provisions of any restructuring scheme, where—
(a) a licence under subsection (2) of section 36 of the 1946 Act (licences from the Corporation to work or get coal) is in force immediately before the restructuring date, and
(b) that licence authorises the carrying on of any coal-mining operations to which this section applies,
the authorisation contained in that licence shall have effect on and after that date as an authorisation for the carrying on of those operations without a licence under this Part and, accordingly, so as to prevent the carrying on of any operations under and in accordance with that authorisation from constituting a contravention of subsection (1) above.
…” (Emphasis added.)
Section 26 provides, so far as relevant:
“ Grant of licences.
(1) Subject to subsection (6) below, it shall be the Authority which shall have the power to grant a licence under this Part.
(2) An application for a licence under this Part may be made by any person who has acquired, or is proposing to acquire, (whether from the Authority or some other person)—
(a) such an interest in land comprised in the area with respect to which the application is made, or
(b) such rights in relation to coal in that area, as, apart from the need for a licence, would entitle him to carry on the coalmining operations to which the application relates.
…
(4) An applicant for a licence under this Part shall pay to the Authority such fee (if any) in respect of the Authority's handling of that application as, having regard to—
(a) the nature of the application, and
(b) any...
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