Judicial Review filed against Ffos-y-fran illegal coal mine

UPDATE: the pressure of our judicial review worked! The Council was finally forced to act and agreed a generous 4 month-deadline with the mining company to actually stop coal mining. In total, 640,000 tonnes of coal were mined illegally which is unbelievable, but it could have been much more without our pressure. Merthyr Council were later criticised for its “epic mishandling” of Ffos-y-fran by the then Climate Change, Environment, and Infrastructure Committee of the Senedd. But to-date, no staff or Councillors at Merthyr Council have been investigated for allowing the mining company to reap windfall profits from illegal coal mining.

Enough is enough! And 11 months of illegal coal mining in Merthyr Tydfil, South Wales is too much.

With support from the Good Law Project, we have filed for a Judicial Review against both the Local Council and Welsh Government’s continuing failure to stop Ffos-y-fran, the UK’s biggest opencast coal mine, selling off over 1,000 tonnes of illegal coal each day right under their noses and to the harm of local residents, the surrounding environment, and our climate.

Not outrageous enough?

Even more scandalously, the Welsh Government has been profiteering by transporting this illegal coal along its railways over the past 11 months, to be burned by various customers in direct breach of its own climate commitments and policies against coal extraction.

Our new BFF’s, Good Law Project

Good Law Project has joined the fray, and are supporting us to finally stop the environmental onslaught of Ffos-y-fran with a judicial review. This has allowed us to assemble a crack legal team from Richard Buxton Solicitors, and Barristers’ Toby Fisher and James Maurici KC. Please share and donate to Good Law Project’s Crowdfunder (and check out their website, we could gush over all their work).

Yep, another judicial review

We are optimistic the legal pressure we’ve just heaped on will finally put a long-overdue end to what should never have happened in the first place. As with our judicial review (and now appeal!) of Aberpergwm deep coal mine, we shouldn’t have to undertake costly legal action to force the Welsh Government to fulfil its obligations to the current and future generations, in Wales and across the world.

Our grounds for a Judicial Review

See our Statement of Facts and Grounds (PDF) summarised below. Coal Action Network is seeking to have judicially reviewed:

The ongoing failure of the First and Second Defendants to act with reasonable expedition to decide whether it is expedient to issue a stop notice to prevent the ongoing unlawful extraction of coal at the Ffos-y-Fran mine, East Of Merthyr Tydfil, CF48 4AE; alternatively

To the extent that it has made one, the decision of the First Defendant that it is not expedient to issue a stop notice to prevent the ongoing unlawful extraction of coal at the Ffos-y-Fran mine, East Of Merthyr Tydfil, CF48 4AE.

The grounds of claim are:

Ground 1(a): The failure of the Council to decide whether it is expedient to serve a stop notice is unlawful.

The Council has not proceeded with “reasonable expedition” in making this decision, and maintains that is has no duty to do so; it has had (or ought to have had) knowledge of the ongoing unlawful activity since 30th January 2023 and has had ample opportunity to investigate.
Although the Council has discretion as to whether or not to take enforcement action (subject to the constraints of public law), it is implicit in the scheme set out by the 1990 Planning Act and 2017 Environmental Impact Assessment regulations that decisions on whether or not to take enforcement action must be taken soon enough to avoid the relevant planning harm; and this is heightened by the Council’s duties under the Well-being of Future Generations (Wales) Act 2015. In this case, the harm from coal extraction (likely to be prohibited under the EIA scheme) is serious, significant and ongoing.

Ground 1(b): The failure of the Welsh Ministers to decide whether it is expedient to serve a stop notice is unlawful.

The Welsh Ministers’ obligation to consider using their “reserve powers” was triggered by the failure of the Council to issue a Stop Notice immediately alongside the Enforcement Notice and/or on receipt of MSWL’s appeal of the Enforcement Notice; and this is heightened by the Welsh Ministers’ duties under the Well-being of Future Generations (Wales) Act 2015

Ground 2: The decision of the Council to decide it was not expedient to serve a stop notice is unlawful.

Coal Action Network is seeking a hearing on the first available date after 20 August 2023 to determine the following remedies:

Urgent interim relief in the form of decision on whether it is expedient to serve a stop notice within 7 days;
A declaration that: (a) The Council and Welsh Ministers acted unlawfully by failing to proceed with reasonable expedition in deciding whether it was expedient to serve a stop notice to bring the ongoing unlawful activity at the Site to an end; further or alternatively (b) The Council acted unlawfully by deciding it was not expedient to serve a stop notice to bring the ongoing unlawful activity at the Site to an end.

What’s next?

After that, we’ll be campaigning for:

The Welsh Government to invite mine workers onto its Universal Basic Income pilot, as the mining company has totally failed to transition its workers, showing scant regard for their welfare. This is a demand we’ve had since the outset.
Merthyr Tydfil to get the original and full restoration it was promised when the Welsh Government forced this sprawling opencast coal mine on everyone living there. Anything less is unconscionable after failing to protect communities living there from 11 months of illegal coal mining.
The Welsh Government to move swiftly to ban any new coal mining on Welsh soil to rule out this ever happening again, and bring it in line with Scotland’s de facto ban on coal mining on Scottish soil.

Shocking stats

But what we must do now is to stop the daily environmental onslaught of the coal mine, producing equivalent to c4,000 tonnes of CO2 every day – or the average daily emissions of 175,000 people living in Wales, which is around 3x the population of Merthyr Tydfil itself! Imagine burning 1.75 MILLION litres of petrol every single morning – that’s the amount of CO2e this coal mine has been allowed to add to our atmosphere every day so far, illegally and without consequence.

Show ‘em how it’s done

Together, you, us, local residents, Good Law Project, and a network of Welsh groups like FOE Cymru, Climate Cymru, and XR Wales will prevail and put an end to this climate calamity any way we can. Let’s show the Council and Welsh Government how it’s done – time to roll up our sleeves and shut this mine down.