'Maladministration and a terrible precedent'

The lack of enforcement by the local council and the Welsh Government preventing ongoing coaling activity at a Welsh mine is "arguably unlawful", according to legal experts.

Merthyr (South Wales) Ltd failed in its bid to extend planning permission for the Ffos-y-Fran mine on 25 April. Councillors at Merthyr Tydfil County Borough Council (CBC) voted unanimously to block the application, which they deemed to be in breach of Welsh government planning policy banning new or extended coal mining unless in exceptional circumstances. 

The local authority also had significant concerns over the mining company’s lack of funds for the long-promised restoration of the site, which it feared would instead be left as a hole in the ground. 

Extract

However, Merthyr South Wales Ltd has not stopped mining activity, neither since its original planning permission for the site expired in September, nor once its planning application was refused. Drone footage and photography obtained by local residents clearly shows ongoing mining at the site. 

But the council refused to consider enforcement against the company before the planning application was decided. One month after that, it served an enforcement notice on Merthyr South Wales, with a deadline for the company to end coaling by 22 July 2023.

However, the company could appeal, meaning that enforcement will be put on hold till the outcome is decided, which could take around 12 months. 

Campaign group Coal Action Network (CAN) has asked the Welsh Government to step in, but it has said that responsibility for investigating breaches of planning control lies with the council in the first instance.

CAN has now obtained a legal opinion from barristers James Maurici KC and Toby Fisher. This states that the council and Welsh ministers have enabled the company to extract coal, without permission or penalty, for more than 18 months. 

Enforcement

This has effectively allowed Merthyr South Wales to extract 168,862 tonnes of coal without permission between 1 October to 31 March 2023. 

If mining continues at the same rate, the company may remove around half a million tonnes of coal by the time enforcement takes effect, resulting in total emissions of around two million tonnes of CO2 - the equivalent of the emissions of 155,000 people in Wales over the same period, the barristers said.

Both the council and the Welsh Government have the powers to issue a “stop” notice, which would mean that mining would have to cease immediately. 

The weaker enforcement notice served by the council means it is effectively treating the breach of planning rules in the same way it would treat construction of an unauthorised building, the barristers argue. 

“These are fundamentally different things. The planning harm caused by an unauthorised building can be remedied by the building’s ultimate removal. 

Unlawfully

"In contrast, the planning harm caused by the unauthorised extraction of coal cannot: the coal cannot be put back in the ground; the carbon emissions from burning the coal cannot be removed from the atmosphere,” the legal opinion notes. 

The lawyers argue that the eight and a half month delay by both Merthyr Tydfil CBC and the Welsh Government is arguably unlawful, and that there is a strong case that they would be acting unlawfully if they failed to serve a stop notice by 27 June 2023, the day the enforcement notice is due to take effect.

Either way, the failure of both authorities to take decisive enforcement action in this case equates to “maladministration and sets a terrible precedent,” the barristers said. 

“It sends a message to all mine operators in Wales that there is no need to bring operations to an end when planning permission expires because the planning system can be ‘gamed’ to enable continued operations for an extended period beyond that date with no consequence,” they concluded. Merthyr South Ltd is acting “unilaterally and unlawfully” in continuing to mine without permission, they said. 

CAN is planning to take the matter to the Public Services Ombudsman (Wales). 

A statement from Merthyr Tydfil CBC said: "We have a contrary legal view of the situation. It is not appropriate to comment any further in light of potential litigation."

Merthyr South Wales did not respond to a request for comment for this article. 

Backpeddling

Meanwhile, the UK government is trying to remove proposed legislation that would prohibit new coal mines. The ban was proposed via an amendment to the Energy Bill by Liberal Democrat Lord Teverson in April which states that the government should introduce regulation to stop the Coal Authority licensing new mines.

Coal mine operators who obtain licenses from the Coal Authority still have to win planning permission from a local authority, but the fact that the Coal Authority still has a statutory duty to develop an economically viable coal industry encourages mine operators to continue to plan new mines, according to Julie James, Welsh minister for climate change in a letter to the UK government in October 2021.

However, the government opposed Teverson’s amendment, and has vowed to remove it as the bill passes through Parliament. 

The move contradicts the position of energy secretary Greg Hands, who in a January 2022 response to James’ letter wrote that the Coal Authority’s duty to promote the coal industry was “at odds” with the UK’s climate leadership ambitions and policies on coal. The government was looking at measures to review that duty, he wrote. 

“This highlights back-pedalling at the highest levels of the UK government on its climate goals,” according to Daniel Therkelsen from Coal Action Network.

A Welsh Government spokesperson said: “Our position is clear – we want to bring a managed end to the extraction and use of coal.”

This Author

Catherine Early is a freelance environmental journalist and chief reporter for The Ecologist. She tweets at @Cat_Early76.