Court of Appeal to consider scope of Welsh Ministers’ power to refuse further coal-mining operations
On Tuesday 6th February, the Court of Appeal (sitting in Cardiff) will consider the scope of the Welsh Ministers’ power to approve coal mining operations under a postponed licence granted under the Coal Industry Act 1994.
Aberpergwm Colliery in Neath comprises a number of anthracite drift mines for which a coal-mining licence was granted in 1996. The licensed area was later extended in 2013, with the authorisation for that area made subject to the satisfaction of a number of conditions (including acquisition of assets, an option agreement, and planning permission). On 1 April 2018, the authorisation of coal-mining operations in Wales was made subject to the approval of the Welsh Ministers (s.26A Wales Act 2017). In 2020, the licence holder made an application to “deconditionalise” its licence.
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. Moreover, allowing the application would lead to the extraction of a further 40-42 million tonnes of coal from the colliery until 2039. Despite this, the Welsh Government decided that it did not have the power under s.26A to approve or refuse the authorisation.
The appeal will consider the High Court’s interpretation that a potential refusal under s.26A would render the provision retrospective by unfairly attaching a new disability to existing rights, whether a coal mining licence is a possession under Article 1 of the First Protocol, and whether a refusal would amount to a disproportionate deprivation of that possession.