Court of Appeal clarifies the ambit of Welsh Ministers’ powers over coal mining

23 Feb 2024

Public Law and Judicial Review, Planning and Environment, Cornerstone Climate

The Court of Appeal has today dismissed a challenge to the Welsh Ministers’ decision that it did not have the power to approve or refuse an authorisation for further coal-mining in Wales, finding that, as a matter of statutory interpretation, the licence was granted before its powers of approval came into effect.

The Coal Industry Act 1994 is a comprehensive statutory regime providing for the licensing and management of coal mining operations in the United Kingdom. Under that Act, a coal-mining licence was granted for Aberpergwm Colliery in the Vale of Neath in 1996, and extended in 2013, on the proviso that that authorisation shall not come into force until certain conditions were met (including acquisition of assets, an option agreement, and planning permission).

The Wales Act 2017 sought to bring about a strengthening of the devolution settlement by, amongst other things, providing that an authorisation contained in a licence under the 1994 Act shall only take effect if the Welsh Ministers approve it (s.26A Coal Industry Act 1994, which came into force on 1 April 2018).

In 2020, having satisfied the conditions, the licence holder made an application to the Coal Authority to “deconditionalise” its licence. Approval of the application would lead to the extraction of a further 40-42 million tonnes of coal from the colliery until 2039, in circumstances where the Welsh Government’s Coal Policy Statement acknowledges that the continued extraction and use of fossil fuels for energy is not compatible with the pathway to net zero at a pace which addresses the climate emergency. Nonetheless, the Welsh Ministers decided that it did not have the power under s.26A to approve or refuse the authorisation.

The Coal Action Network, a small environmental campaign group whose aims include working for an end to coal extraction, challenged the Welsh Ministers’ decision. In the High Court, Steyn J agreed with CAN that the language used in s.26A favoured an interpretation where the terms ‘licence’ and ‘authorisation’ conveyed different meanings, that an authorisation postponed until certain conditions are met could, on the language used, come within the Welsh Ministers’ powers of approval, and that was consistent with a purposive approach to interpreting the section. However, the Judge held that a potential refusal under s.26A would render the provision retrospective by unfairly attaching a new disability to existing rights, on the basis that a coal mining licence was a possession under Article 1 of the First Protocol, and any refusal would amount to a disproportionate deprivation of that possession.

CAN appealed that decision challenging the Judge’s approach to retrospectivity and A1P1, which were matters argued by the Welsh Ministers in written submissions after the hearing in the High Court.

The Court of Appeal has dismissed that appeal, upholding the Order of the High Court but for reasons different to those given by Steyn J. The logical first question for the Court was the proper interpretation of s.26A of the Coal Industry Act 1994. Steyn J had wrongly treated the terms ‘licence’ and ‘authorisation’ as having separate meanings under s.26A. On the Court’s analysis, there was only one way to make grammatical sense of the section. The power conferred by section 26A did not apply to a licence granted before that section came into force, and as such it was not necessary to engage with the grounds of appeal.

CAN has applied for permission to appeal against the Court’s judgment.

Estelle Dehon KC and Asitha Ranatunga represented the Coal Action Network, instructed by Matthew McFeeley of Richard Buxton Solicitors