The Court of Appeal agreed with the Welsh Ministers that the case turned on a straightforward matter of statutory construction which it said had nothing to do with the Welsh Government’s current policy on coal mining.  The Welsh Ministers’ case was summarised by Lewis LJ as follows: 

35. Mr Jones KC for the Welsh Ministers submitted that the question in this case was a simple one of statutory interpretation. Coal mining-operations had to be licensed by reason of section 25 of the 1994 Act. The licence had to specify the coal-mining operations that were authorised and could include conditions. When a licence is granted authorising coal-mining operations, that is when the authorisation comes into existence although it may be subject to restrictions. The authorisation was granted, however, when the licence was granted. In this case, the licence had been granted in 1996 (and varied in 2013) and it had come into existence, and had effect before 1 April 2018. Section 26A only applied to new licences, i.e. ones that would come into existence after 1 April 2018. Mr Jones confirmed that if changes were made to extend the area within which coal-mining operations could be carried out or to extend the length of time for which coal-mining operations were extracted, section 26A would apply to those changes and they would require approval by the Welsh Ministers.

CON however alleged that the Court of Appeal had followed different reasoning to the Judge below and that as no application had been made to uphold the judgment on different reasons the Court  of Appeal had been wrong to take that approach.  However, on 1 July 2024, the Supreme Court comprising Lord Lloyd-Jones, Lord Leggatt and Lord Richards ordered that permission to appeal be refused because the application does not raise an arguable point of law which could result in the appeal succeeding. In any event, there is no point of law of general public importance.  The Appellant was also ordered to pay the Respondents’ costs, the amount of those costs to be assessed if not agreed.

Gregory Jones KC was instructed by Nick Howard on behalf of the successful Welsh Government | Llywodraeth Cymru.