The Claimant unsuccessfully challenged the decision of the Welsh Ministers dated 10 January 2022 that it does not have the power under s.26A of the Coal Industry Act 1994 (‘the 1994 Act’) to approve or refuse the authorisation of coal-mining operations granted in a licence that was issued in 1996 and subsequently varied by the Coal Authority, most recently in 2013. The Claimant also unsuccessfully challenged the decision of the Coal Authority dated 25 January 2022 to grant the operator, Energybuild Mining Limited’s, application that it had discharged the conditions precedent contained in the Licence.
The Licence authorising coal mining operations was granted in 1996. Authorisation was suspended on terms – the discharge of general conditions precedent and planning conditions precedent – which were to be satisfied by 1996 and 1998 respectively. Under the Licence, coal mining operations could not take effect until the conditions precedent had been discharged.
The Licence was varied in 2000, 2005, 2011 and 2013, with the latest variation amending the conditions to require the operator to secure planning permissions and all other rights and permissions necessary by 31 December 2020. In 2014, and in compliance with the 2013 variation, the operator made an application for planning permission, which was subsequently determined by the Local Planning Authority in 2018. On 16 September 2020, the operator applied to the Coal Authority for a notice to the effect that the conditions relating to the conditional areas of the Licence (as defined in the 2013 Variation Agreement) had been fulfilled.
By its decision of 25 January 2022, the Coal Authority granted the operator’s 2020 Application. As s26A of the 1994 Act, which allows the Welsh Ministers to approve or refuse coal-mining operations, did not enter into force until 01 April 2018, the Welsh Ministers did not make a determination on the operator’s application.
The claim gave rise to two points of statutory interpretation under the 1994 Act. First, whether the Welsh Ministers erred in law in deciding that s.26A was inapplicable to applications relating to a licence granted in 1996 and varied in 2013. Second, whether the Coal Authority unlawfully fettered its discretion and/or failed to take into account material considerations in approving the operator’s application.
Mrs Justice Steyn dismissed the challenge to the Welsh Ministers’ decision. In particular she held that the Claimant’s interpretation of s.26A “gives the provision a degree of retrospective force”. Mrs Justice Steyn also agreed with the Welsh Ministers’ submission that if a licence is granted subject to conditions precedent, “ordinarily, the recipient of the licence is entitled to expect that if they satisfy those conditions, the authorisation contained in the licence will take effect.”
On the second ground, Mrs Justice Steyn held that, as the Coal Authority had issued an authorisation subject to the satisfaction of conditions, it was confined to determining whether, in its reasonable opinion, the conditions precedent had been fulfilled. Ultimately, it would be inconsistent with the provisions of the 1994 Act for the Coal Authority “to treat an application for a determination that conditions imposed in a licence have been satisfied as a fresh opportunity to determine whether, or on what conditions, coal-mining operations should be authorised.”
Gregory Jones KC acted for the First Defendant, the Welsh Ministers.