After JR Threat, Secretary of State Calls in Cumbrian Coal Mine

12 Mar 2021

Planning and Environment, Public Law and Judicial Review

The Secretary of State for Housing, Communities and Local Government has decided to call in for his own determination an application by West Cumbria Mining (WCM) for a new mine for up to 50 years of extraction and processing of metallurgical (coking) coal, used in the production of steel. The proposed mine would be the first new deep coal mine in the UK for decades and would extract a peak of over 2 million tonnes of coal a year from under the sea near Whitehaven in Cumbria.

Local group South Lakeland Against Climate Change – Toward Transition (SLACC), which objected to the application because of its climate change impact and the economic impact of embedding a “stranded asset” in the community, asked the Secretary of State to call in the decision in October 2020. That request was refused on 6 January 2021. SLACC wrote again to the Secretary of State on 14 January 2021 and 2 February asking him to reconsider, raising inter alia that the annual greenhouse gas emissions of the mine would exceed the available emissions in the Climate Change Committee’s (CCC) Sixth Carbon Budget projections for the entire coal mining subsector upon commencement of its mining operations. SLACC also noted that the CCC’s projections in relation to coking coal suggested the need for this could in the UK would significantly decrease prior to 2050.

The Secretary of State informed SLACC that the decision not to call in the application was not being reconsidered, which prompted SLACC to issue a pre-action letter challenging the Secretary of State’s refusal to consider exercising his call-in power; his failure to take into account material considerations arising from the CCC’s Sixth Carbon Budget and his failure to give cogent reasons for departing from his call-in policy.  

On 11 March 2021, the day on which the pre-action response was due, the Secretary of State announced his decision to call-in the decision.

The Secretary of State does not usually give reasons for calling in a decision, but exceptionally the call-in letter gives detailed reasons:

  1.  The “further developments” since the Secretary of State’s original decision, namely the CCC’s recommendations for the Sixth Carbon Budget, which the Secretary of State considered “should be explored during a public inquiry”;
  2. The Secretary of State considered that the application raises planning issues of more than local importance and issues of substantial cross-boundary or national controversy; and
  3. The Secretary of State considered that there is potential conflict with national policies in Chapter 14 (climate change) and Chapter 17 (use of minerals) of the NPPF.

A planning inquiry will now take place, which will examine these matters. Cumbria Council is required to provide its statement of case to the Secretary of State by 22 April 2021.

It will be interesting to see what position the Council takes. On 19 March 2019, the Council granted planning permission for the development, subject to completion of a section 106 agreement. The Council reconsidered the resolution and once again granted planning permission on 31 October 2019, subject to the section 106 agreement being finalised. 

Although the Decision Notice had not yet been issued, the resolution to grant planning permission was subject to challenge via judicial review, which was due for hearing on 18 May 2020 when WCM amended its planning application and asked the Council to consider the amended application. This brought legal action to an end and led to a long process of re-consultation on the amended application. The Council considered the application on 2 October 2020, deciding it was minded to grant planning permission with a revised set of planning conditions.

Then, on 9 February 2021, the Council notified WCM that it had decided to refer the application back to committee for a fourth time, following threat of legal action by SLACC and in light of the CCC’s Sixth Carbon Budget report. WCM was sufficiently concerned by the Council’s volte-face to bring its own judicial review of the Council’s decision to reconsider the application. It is therefore unclear, despite the three resolutions to grant planning permission, whether the Council will in fact support permission being granted. 

Estelle Dehon is advising SLACC, instructed by Matthew McFeeley of Richard Buxton Solicitors. The call-in letter is available HERE.