998: Coal in Wales, Waste in Northern Ireland and a Memorial in England

Today’s entry looks at a High Court case on a Welsh coal extraction project, a Northern Irish waste from energy project, a memorial in England and other infrastructure-related updates.

Left out in the coal’d in Wales

An interesting case ((on the application of Coal Action Network) v Welsh Ministers and the Coal Authority [2023] EWHC 1194) has arisen in the context of a development which would enable the extraction of 40 million tonnes of coal over an area of 1,131 hectares of Aberpergwm Colliery in the Vale of Neath in Wales which I think is a useful reminder in the DCO context.

The relevant licence had already been granted, and all that remained related to the discharge of licence conditions. The claim was brought by the Coal Action Network against the Coal Authority. Incidentally, Coal Action Network (CAN) is a curious name, no doubt a play on the other activist groups like the Transport Action Network. It did make me think of a joke: a man walks into a bar and sees a person talking to a piece of coal – it must have been carbon dating. Of course, the name is not a reference to ‘action’ in that context, it may be so named for sedimental reasons (get it? Never min(e)d!). Anyway, back to the case, and the argument was made that notwithstanding the licence had been granted, material considerations relating to climate change should have been taken into account.

In particular, in 2021, the Welsh Government published the Coal Policy Statement. The Ministerial foreword clearly states ‘the policy of Welsh Government is to bring to a managed end the extraction and use of coal.’ The claim from ‘CAN’ was that this policy should have been considered in deciding whether to grant that the relevant conditions could be discharged. For context, issued by the Coal Authority in 1996 and subsequently varied, most notably in 2013. The application by the developer was to ‘deconditionalise’ (a curious word for discharge) the licence.

Steyn J considered the much-loved issue of ‘obviously material considerations’ (notorious ‘OMCs’) and concluded that the Coal Authority had not failed to take into account any material considerations. The Coal Authority’s job, consistent with the analogous position under the Town and Country Planning Act, was restricted to considering whether the conditions on the licence should be discharged. The Coal Authority was not permitted to go back on the principle of extraction that had been established when the licence was granted on a conditional basis in 1996.

Why do I think this is relevant? Well, there is a curious and frankly bizarre argument that DCO Requirements should re-consider the merits of projects and freshly consider circumstances not anticipated at the time of the decision to grant development consent. If, for example, a DCO was granted in 2013, and then an application was submitted to discharge the conditions in 2023; it would be bizarre to attempt to re-determine the merits of the project (well beyond the question of whether it falls within the parameters of the original consent). I’m hopeful that the attempts to push the planning industry in that direction are robustly rebuffed as requiring a discharge of a condition or a requirement to align with policies unknown at the time of consent would be hugely destabilising for the industry.

So, the challenge failed and CAN was kicked down the road.

In related news, it has been announced that two challenges by Friends of the Earth and South Lakes Action on Climate Change to the grant of planning permission for a coal mine near Whitehaven in Cumbria will be heard in the High Court on 24-26 October 2023.  The 419-page decision letter, issued on 7 December 2022, can be found here. Much of the controversy surrounds paragraph 22.9 in the letter.

SLACC has four grounds of challenge:

• the claim that the coal extracted would substitute for other coal in steelmaking was not tested;
• the opening of the mine would undermine the UK’s leading role in combating climate change;
• the decision misunderstood the judgment in the Finch case on assessing downstream emissions (being heard by the Supreme Court this month); and
• parties were unfairly held to different standards of evidence.

FoE also has four grounds:

• the proposed offsetting by the mining company cannot legally be taken into account in assessing the effect on carbon budgets; and
• similar grounds to SLACC’s second, first and third grounds respectively.

Wasted in Northern Ireland

The Northern Ireland High Court has quashed the refusal of planning permission for a energy from waste project in County Antrim. The quashing was by consent after the Department for Infrastructure decided not to defend the application for judicial review (brought by the developer). We won’t know the precise reasons for accepting quashing by consent, but the press reports suggest that ‘officials running the DfI – in the absence of an executive – said they would not be contesting the legal challenge.’

Holocaust Memorial Bill in England

I know we don’t usually talk about Hybrid Bills on this blog, but a recent decision will be a useful precedent for infrastructure projects in the future. As you’ll know, Hybrid Bills are Bills, promoted by the Government, which usually have some element which affects particular persons in a way. One of the main consequences of having a Hybrid Bill is that people can ‘petition’ against it. HS2, Crossrail, the Channel Tunnel Rail Link are all historic examples of infrastructure projects being consented via Hybrid Bills.

The Holocaust Memorial Bill was introduced by Government to enable the construction of the Holocaust Memorial and Learning Centre in Victoria Embankment Gardens, right by Parliament. In particular, the Bill proposes to remove the restriction in a historic 1900 Act of Parliament which was found by the High Court to be a material consideration in the planning application for the proposals. The High Court ultimately quashed the planning permission on that basis.

Over the last few weeks, the Government has been arguing that the Bill is not a Hybrid Bill, it’s a Public Bill. By the by, we acted for Westminster City Council arguing the Bill was properly considered Hybrid. That argument has now been accepted by the Examiners in the House of Commons and House of Lords. You can read their report here. This will be an interesting point to consider for future infrastructure projects considering obtaining consent via the Hybrid Bill procedure.

NPS updates

A reminder that the Government’s consultation on the National Networks NPS closes on 6 June 2023. As we mentioned before, we have been with our friends and colleagues to prepare a response. The deadline for the Transport Select Committee’s consultation on the same draft NPS has passed, and we understand further inquiry work will be taking place over the coming weeks.

Incidentally, the consultation on the revised draft Energy National Policy Statements has been extended from 25 May to 23 June 2023 because they left a question about overhead lines out of the online survey. Oops!