In a judgment handed down on 23 February 2024, the Court of Appeal dismissed a challenge to the Welsh Ministers’ decision that it did not have the power to approve or refuse an authorisation given by the Coal Authority for coal-mining in Wales.  The Court of Appeal accepted submissions made by the Welsh Government that as a matter of straightforward statutory interpretation the licence was granted before its powers of approval came into effect.

The Court held that the Coal Industry Act 1994 provides a comprehensive statutory code for the licensing and management of coal mining operations in the United Kingdom. Under that Act, a coal-mining licence was granted by the coal Authority for Aberpergwm Colliery in the Vale of Neath in 1996 and extended in 2013.  As was common practice, certain parts of the authorisation did not come into force until certain conditions were met in this case which included acquisition of assets, an option agreement, and obtaining planning permission.  As part of strengthening the devolution settlement, the Wales Act 2017 introduced, amongst other things, a provision that an authorisation contained in a licence under the 1994 Act in Wales shall only take effect if the Welsh Ministers approve it (s.26A Coal Industry Act 1994, which came into force on 1 April 2018).  Having satisfied the conditions, Energybuild (the licence holder) made an application to the Coal Authority to “deconditionalise” its licence.  The Welsh Ministers decided that it did not have the power under s.26A to approve or refuse the authorisation.

The Coal Action Network, (CAN) challenged the Welsh Ministers’ decision and the decision of the Coal Authority that it had no power to revisit the grant of coal mining. Unusually although the two decisions were separate and made by different public bodies on different dates, the claimant brought a single claim with two separate grounds, one against the Welsh government and one against the Coal Authority.  In the High Court, Steyn J dismissed both challenges. She 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.  Steyn J refused permission to appeal the decision of the Coal Authority but granted permission to appeal the decision against the Welsh Government.  CAN's renewed permission application against the Coal Authority's decision was dismissed by Lewis LJ.    

The Court of Appeal dismissed that appeal.  Lewis LJ held that the case involved straightforward statutory interpretation.  He was of the view that the logical first question for the Court was the proper interpretation of s.26A of the Coal Industry Act 1994. In his view Steyn J had wrongly treated the terms ‘licence’ and ‘authorisation’ as having separate meanings under s.26A. The court here 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. Nicola Davies LJ agreed as did the President of Senior Tribunals, Sir Keith Lindblom adding his own short reasoning including the view that: "This case can be approached quite simply, and it should be. It calls for the straightforward application of the principles of statutory interpretation to a small number of provisions in the legislative scheme, in particular section 26A(1) of the 1994 Act."

CAN applied to the Court of Appeal for permission to appeal but this was refused by the Court of Appeal.

Gregory Jones KC, instructed by instructed by Welsh Government Legal Services, appeared for the Welsh Government.