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Ffos-y-fran opencast coal mine quietly becomes a massive reservoir

Local residents kept in the dark

Council passive as company sabotages agreed restoration plan

Key to the current restoration plan (agreed in 2007) was the return of the huge overburden mounds into the void that were created when the void was excavated to reach the coal. Every day the void fills with water, though, makes returning these overburden mounds to the void more expensive and logistically difficult, as that water would need to be drained first. This is likely to be the intention—Merthyr (South Wales) Ltd is refusing to fulfil its legal obligation to fund the restoration plan, so it’s looking to cut corners. Avoiding shifting millions of tonnes of overburden back into the void is a large corner to cut. Removing the pumps, that have been draining water from the void for the past 15 years, and taking months to apply to the Council for a budget restoration deal means that Councillors would have little choice but to rubber-stamp approval. The Council have admitted this would affect the "viability" of the restoration plan.

Council makes no move to inform inhabitants of accumulating reservoir nearby, with no safety checks yet made

Coal Action Network’s drone footage on Monday 11th March raised the alarm bell about the rising water levels. With this footage, a local resident informed Merthyr Tydfil County Borough Council of the rising water levels, only to be told that the Council was already aware of it, and that Merthyr (South Wales) Ltd had removed the pumps with no intention of reinstating them. Yet the Council made not move to inform any residents living close to the mine of the massive build up of water above their heads. The Council’s oversight of 16 months of illegal coal mining and now this intentional derailment of the current restoration plan is a further dereliction of its responsibility to the safety and wellbeing of town inhabitants. The Council has failed to hold Merthyr (South Wales) Ltd to account for its many transgressions over the past 18 months of illegal coal mining, with baffling impotence. Merthyr (South Wales) Ltd’s most recent action to remove pumps from the void is directly breaking the enforcement notice served to it by Merthyr Tydfil County Borough Council, but we won’t hold our breath waiting for the Council to do anything about that…

Find out more about the Ffos-y-fran opencast coal mine...

Sign our petition for its proper restoration.

Published: 27. 03. 2024

Charges dropped for activists blocking Ffos-y-fran coal mine

XR press release:

The Crown Prosecution Service has dropped all charges against the four Extinction Rebellion (XR) activists who blockaded the entrance to the UK’s largest open-cast coal mine, last summer with a pink boat.

While removing the immediate burden of legal confrontation for the defendants, the decision has left a “crater of unfinished business” in the fight for climate justice and accountability for local residents..

“The action was always designed to have a much deeper impact beyond the immediate disruption with a pink boat,” explained Liz Pendleton, one of the four defendants who occupied the site for over 24 hours in July 2023. “It was designed to expose the alleged illegal activities and environmental negligence of the mining operation, in particular, its continued operation beyond permitted planning conditions and contradictory and misleading financial statements which may well constitute fraud.”

The Ffos-Y-Fran mine in Merthyr Tydfil, Wales had been operating without a licence for almost ten months when XR activists took direct action.

“By denying us our day in court the CPS has denied us the opportunity to shine a light on this potentially illegal and criminal operation,” said Liz.

The legal proceedings revealed a shocking lack of cooperation from the mine, including failure to provide basic operational logs, communications between the mine and governmental bodies, and internal documents relating to the financial and environmental management of the mine's operations. This critical information would have shed light on the legal position of the operation and whether funds had been set aside for environmental restoration - which was a condition for the getting the go ahead in the face of overwhelming local opposition. The defendants were also confident this would have led to their acquittal.

The dropping of the case also casts doubt on the legitimacy of the arrests, as in the case of aggravated trespass the police can clearly be seen acting in the interests of corporate bodies who then fail to prove that they themselves were carrying out lawful activities.

The discontinuation of charges is a testament to the strength of the activists case and the shaky foundation upon which the mine's operations stood, explained Raj Chada from Hodge Jones & Allen, representing the defendants:

“In seeking disclosure from the CPS, we highlighted the need for transparency on several critical points. Our requests were aimed at uncovering potential evidence of the mine operating beyond legal scrutiny, which raises concerns about the legality of its operations. The CPS's inability to meet these disclosure obligations casts a shadow over the proceedings and suggests that the depth of the mine's legal and environmental mismanagement may be greater than previously understood.”

For over a decade and a half, the Ffos-Y-Fran mine has been a symbol of the environmental and social challenges that face communities at the ‘coal face’ of climate degradation. The abrupt end to this case marks not a clear-cut victory but a complex milestone in the ongoing struggle. While it spares the defendants the strain of a continuing court battle - already exceeding seven months in duration - it denies the platform to publicly expose the depth of negligence and alleged fraud by the mine's operators, Merthyr (South Wales) Ltd., including their failure to fulfil obligations towards land reparations and the creation of green jobs.

Speaking upon hearing the news, local resident and defendant Marcus Bailie commented: “Our fight was not just against the physical act of coal extraction but against disregard for the land's future and the community's well-being. The piles of coal and the colossal scar on the landscape left behind serve as stark reminders of the environmental impact that has yet to be addressed. The real victory would have been to hold those responsible to account in a public forum, forcing a reckoning with the consequences of their actions.” Marcus went on to say, “We’re not the criminals here!”

Chris and Alyson Austin, residents of Merthyr Tydfil who have been campaigning for years for the mine to be closed said: “We feel angry and betrayed about the waste-land they have left behind.”

The bittersweet outcome underscores the resilience and dedication of activists and the broader environmental movement. It also highlights the complexities of seeking justice in a system where procedural technicalities can overshadow substantive issues. The fight for the Ffos-Y-Fran mine was never just about legal vindication; it was about bringing to light the injustices inflicted upon nature and communities - and campaigners promise, it won’t end here.

For further information, quotes, or to arrange interviews, please contact: press@extinctionrebellion.uk | +44(0)7756136396

Published: 26. 02. 2024

Ffos-y-fran, the UK's last opencast coal mine finally shut - we're not celebrating

We're not celebrating...

We're not celebrating the purported end of coal mining at Ffos-y-fran in Merthyr Tydfil, South Wales today. Because the abject failure of Merthyr County Borough Council to stop the past 15 months of illegal coal mining at Ffos-y-fran has resulted in:

  • Over 500,000 tonnes of illegal coal
  • Over 1.6 million tonnes of CO2
  • 362 additional deaths from climate change related causes
  • Dust & noise for locals
  • No agreement to fund restoration works

The Welsh Government, rather than stepping in to issue a stop notice to prevent the illegal coal mining, even transported the illegal along rail lines owned by the Welsh Government to customers...and continue to do so. The coal company has amassed a huge stockpile of coal at the rail terminal to continue selling off after 30th November - largely made possible by the Welsh Goverment's rail lines.

The Welsh Government's policies against coal mining are obviously not strong enough - why won't the Welsh Government take its place next to Scotland in issuing a clear ban on coal mining?

Job losses

There are around 150 workers at Ffos-y-fran who face redundancy today. Merthyr (South Wales) Ltd has let workers down. The company had many years of knowing when planning permission expired, and to retrain and support workers to find work in more sustainable industries for when that happens... but hasn't. To add insult to this injury, the company further let workers down by refusing to pay for the restoration that it's legally obliged to, and which would have provided many workers with years of work to come on site, in the green sector of nature restoration.

Restoration

The final restoration plan promised to local residents since 2007 now hangs in the balance as the mining company makes off with bumper profits from both legal and illegal coal mining, but refuses to meet its obligation to pay for the restoration. It's siphoned MILLIONS of pounds of profits into related companies, and neither the Council nor the Welsh Government seems intent to challenge that. Local residents and the Welsh Government's own report warned the Welsh Government and Local Council nearly a decade ago of this exact risk - why wasn't that acted on? Sign our petition to demand the Welsh Government commits to delivering:

  1. a public inquiry into this debacle
  2. the original restoration promised in 2007
  3. the outright ban on coal mining in Wales that's clearly needed

We obtained a letter from the Coal Authority to the Merthyr Tydfil County Borough Council, in which the Chief Executive of the Coal Authority is scathingly critical of inaction within the Council and their handling of Ffos-y-fran. The Council must be held to account for its failings.

Protest charges

Extinction Rebellion Cymru protestors blockaded Ffos-y-fran illegal operation for over 24 hours - which is 24 hours longer than Merthyr County Borough Council managed to. Despite the illegal activities of Merthyr (South Wales) Ltd, its owner David Lewis has been left untouched. On the other hand, XR protestors were arrested, held in police cells, and have court hearings about for preventing illegal coal mining. Please donate to their legal fees crowdfunder against this gross injustice.

Published: 30. 11. 2023

Ffos-y-fran: timeline of illegal coal mining

Timeline

01 September 2022: Merthyr (South Wales) Ltd applies for a S.73 time extension to mine coal from Ffos-y-fran, and to accordingly delay and vary restoration works.

06 September 2022: Planning permission ends for coal mining at the Ffos-y-fran site, after 15 years and 3 months of operations.

12 September 2022: first reports to MTCBC have been made by local residents of coaling beyond the end of planning permission.

13 September 2022: Local residents submit letters of objection to the Ffos-y-fran extension application.

20 September 2022: CAN submits a letter of objection to the Ffos-y-fran extension application.

27 September 2022: Local residents were supplied with a statement from the Local Planning Authority via their Assembly Member stating; '“If coal mining operations continue on site, this would result in a breach of the planning conditions and may be subject to enforcement action. At this stage because a planning application has been submitted, which seeks to amend to the current permission and enable operations to continue on site, it would not normally be expedient to take enforcement action until that application has been determined…”.

14 October 2022: Local Residents apply to the Planning Directorate (Wales) asking them to 'call-in' the planning application for it to be determined by the Welsh Government

23 October 2022: CAN launches a 38 Degrees petition for Welsh Ministers to call in and reject the application to extend Ffos-y-fran.

12 January 2023: two local residents hand-deliver petition with over 20,000 signatures to the Welsh Government to call in and reject the application to extend Ffos-y-fran.

12 January 2023: CAN emails the head of planning at MTCBC for confirmation whether coal mining is—or has been—occurring at Ffos-y-fran beyond the end of planning permission. The Case Officer responds on 20th January as below.

19 January 2023: CAN contacts MS Dawn Bowden to alert her to the suspected planning infringement within her constituency. The Office of MS Dawn Bowden responds that they will seek an update from the Local Planning Authority regarding the site and current activities.

20 January 2023: MTCBC‘s Principle Planning Officer responds that “It is my understanding that coaling mining has presently ceased on site, pending the outcome of the current planning application”. This understanding was formed based on an update provided by the mining company rather than any kind of inspection or investigation, and did not answer whether coaling has occurred at any point since the end of planning permission.

23 January 2023: MTCBC Planning Councillors and Local Planning Authority staff are invited to a webinar on restoration issues from coal mining in South Wales, featuring Ffos-y-fran in Merthyr Tydfil. Every Council we invited participated in the webinar apart from MTCBC.

27 January 2023: FOE’s Planning Specialist submitted a screening direction request to MTCBC, challenging the Planning Officer’s assessment that a new Environmental Impact Assessment (EIA) was not needed for the extension application despite the fact that the last EIA is over 15 years old.

30 January 2023: CAN shares Production and Manpower Statistics from The UK Coal Authority spanning the last 6 months of 2022, indicating coal mining at Ffos-y-fran has continued unabated at the site beyond planning permission.

02 February 2023: MTCBC‘s Principle Planning Officer confirms they were unaware of these statistics and would need to investigate them further - “I can then determine whether the matter should be escalated with our enforcement team and what suitable course of action should be taken, pending the outcome of the current planning application”. The Planning Officer reiterated that based on conversations with the mining company, “activity taking place on site, largely [emphasis added] relate to the slippage that occurred in August 2022”.

06 February 2023: CAN requests an update from the MTCBC‘s Principle Planning Officer’s review of the UK Coal Authority’s statistics indicating ongoing coal mining at Ffos-y-fran. No answer was given.

16 February 2023: MS Dawn Bowden’s office shares with us part of MTCBC Local Planning Authority response to their request for an update “At present we are of the view that the works taking place on site largely relates to the slippage and incorporates some restoration works. Should this situation change it would be necessary for us to consider whether a breach in the planning conditions has taken place and whether it would then be expedient to take enforcement action pending the determination of the current application”. This indicates the Local Planning Authority still has not carried out any investigation, and would only consider enforcement after the determination of the extension application.

03 March 2023: Richard Buxton Solicitors, instructed by CAN, email Welsh Ministers and Enforcement at MTCBC requesting immediate enforcement action is taken at Ffos-y-fran to stop the apparent ongoing breach of planning control.

09 March 2023: A MTCBC solicitor answers that “The Council does not consider that it would be a productive use of its officers’ time to provide a detailed response at present to the matters raised in the letter”. The response also reveals that the extension application is due to be considered on 26 April 2023, only after which any issues related to enforcement will be considered. This effectively affords the coal company a de facto, circa 8 month extension—just one month less than what it applied for, and without any democratic process, procedure, or regulatory oversight.

13 March 2023: Richard Buxton Solicitors write to the Welsh Ministers regarding the serious breach of planning control and the Local Planning Authority’s inadequate action to stop it, despite consequences to national-level climate commitments. A response is requested by 20 March 2023.

21 March 2023: Richard Buxton Solicitors write to the Welsh Ministers following up on the missed response deadline. No reply was offered by Welsh Ministers or any representative of the Welsh Government.

18 April: The Coal Authority fail to provide the first quarter of 2023 national coal mining statistics. Statistics for 2022 were used to prove Ffos-y-fran continued coal mining. The Coal Authority weeks later provide only national-level statistics from which it is not possible to isolate what coal is being mined at Ffos-y-fran. The Coal Authority state it will provide the usual break-down but as of 24 May 2023, has not done so.

26 April 2023: MTCBC Councillors unanimously reject the application to extend the Ffos-y-fran coal mine.

02 May 2023: MTCBC rejects demands that it takes immediate enforcement action via a Temproary Stop Notice in light of the Councillors' rejection of the extension.

04 May 2023: MTCBC case officer admits to witnesses coal trucks continuing to leave the Ffos-y-fran coal mine.

08 May - 12 May 2023: MTCBC receives over 7000 emails demanding it stops nearly 1,000 tonnes of coal leaving the mine every day with a Temporary Stop Notice. MTCBC fails to respond.

10 - 12 May 2023: MS Julie James (Minister for Climate Change) and MS Lee Waters (Deputy Minister for Climate Change) receive over 2,000 emails demand they exercise power 182 of the TCPA to intervene and put a stop to this coal mine, given the MTCBC's continuing failure to for over 8 months.

16 May 2023: After communication with CAN, MS Delyth Jewell questions the Welsh Government on its inaction over Ffos-y-fran. MS Lesley Griffiths responds that there doesn't appear to be evidence of continued coal mining, but instead just of coal leaving the site.

19 May 2023: Drone footage seems to evidence the mining and transport of coal to be filtered inside Ffos-y-fran coal mine.

23 June 2023: Coal Action Network obtains an open letter legal opinion from James Maurici (KC) of Landmark Chambers and Toby Fisher of Matrix Chambers, advising amongst other things, that the Welsh Government or Merthyr Tydfil County Borough Council should issue a stop notice to prevent the ongoing illegal coal mining at Ffos-y-fran.

23 August 2023: Together with Good Law Project, we instruct Richard Buxton Solicitors - specialists in planning and environmental law - to initiate judicial review proceedings against the Welsh Government and Merthyr Tydfil County Borough Council for failing to stop the ongoing illegal coal mining.

23 October 2023: A group of over 30 Wales-based NGOs and businesses sign on to a letter to Climate Change Minister Julie James MS and Deputy Climate Change Minister Lee Waters MS demanding the Welsh Government ban coal mining on Welsh soil to avoid another Ffosy-y-fran opencast disaster.

Published 25/05/23 Updated 30/10/2023

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

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:

  1. 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
  2. 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:

  1. Urgent interim relief in the form of decision on whether it is expedient to serve a stop notice within 7 days;
  2. 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:

  1. 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.
  2. 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.
  3. 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.

Let’s get it done

Published: 10.08.2023

Ffos-y-fran mining company acting "unilaterally and unlawfully"

Respected senior Barristers, James Maurici KC, and Barrister Toby Fisher have today released a blistering open letter of legal advice that reveals for the first time that the company operating the UK’s largest opencast coal mine, Ffos-y-fran, in South Wales is doing so “unilaterally and unlawfully” without the approval of “any democratically elected bodies or persons”, yet the approach of political representatives in Wales so far means “there will be no consequence for that unauthorised and unconstrained activity”. This approach, the Barristers argue, may even be unlawful. The letter further warns this may fail to prevent “future operators from acting in the same way”.

View in original PDF or read below.

IN THE MATTER OF FFOS-Y-FRAN COAL MINE

 AND IN THE MATTER OF THE TOWN AND COUNTRY PLANNING ACT 1990

 OPINION

 For correct paragraph numbering, please refer to the PDF.

INTRODUCTION AND SUMMARY

 We are asked by Coal Action Network for our opinion on the ongoing situation at Ffos-y-Fran coal mine, Merthyr Tydfil (‘the Site’). In particular, we are asked for our opinion on the past and future exercise of statutory enforcement powers by Merthyr Tydfil County Borough Council (‘the Council’) and the Welsh Ministers.

  1. In summary, the site has been used as a coal mine since 2005. On 6 September 2022, planning permission for the extraction of coal from the Site expired. Merthyr (South Wales) Limited (‘MSWL’) did not, however, bring its coaling operations to an end and continued to extract coal from the Site in breach of planning control. No enforcement action was taken by the Council or the Welsh Ministers in relation to this breach for eight-and-a-half months. An enforcement notice (‘the EN’) was finally served on 24 May 2023 with compliance required by 22 July 2023. No stop notice has been served. If MSWL appeals against the EN, the EN will not take effect until the determination of that appeal which, on current timescales, may take around 12 months. Consequently, in the absence of a stop notice, the Council and the Welsh Ministers may have enabled MSWL to extract coal, without permission but without consequence, for more than 18 months.
  2. Coal Authority data shows that MSWL extracted 168,862 tonnes of coal, without permission, in the six-month period from 1 October 2022 – 31 March 2023. If extraction continues at the same rate, MSWL may extract around half a million tonnes of coal in the 18 months from 6 September 2022 until the EN might take effect. The total emissions attributable to 18-months of unlawful coaling at this single mine are in the region of 2 million tonnes CO2eq, the equivalent of the annual emissions of 155,000 people in Wales.[1]
  3. The extraction of the coal and the associated emissions are the result of a mining company choosing to act unilaterally and unlawfully. The activity has not been approved by any democratically elected bodies or persons.[2] It is not subject to any mitigations imposed by planning condition or obligation. It is wholly unauthorised and unconstrained. But on the approach adopted to date by the Council and the Welsh Ministers there will be no consequence for that unauthorised and unconstrained activity and no deterrent effect to dissuade future operators from acting in the same way.
  4. Planning Policy Wales and the Welsh Ministers’ Coal Policy Statement acknowledge a climate emergency and impose a strong presumption against permission for coal extraction. The Council has determined that the ongoing activity at the Site is not acceptable in planning terms. But the Council and the Welsh Ministers have failed to take action to bring the unauthorised activity to an end urgently and decisively. Instead, they have treated a breach of planning control related to the extraction of coal in the same way they would treat a breach of planning control related to the erection of an unauthorised building. These are, however, fundamentally different things. The planning harm caused by an unauthorised building can be remedied by the building’s ultimate removal. 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.
  5. In the circumstances, it is arguable that the Council’s and Welsh Ministers’ eight-and-a-half month delay in taking enforcement action was unlawful. Further, it is strongly arguable that it would be unlawful for the Council and/or Welsh Ministers to fail to serve a stop notice by 27 June 2023, the date on which the EN is due to take effect.
  6. Irrespective of the lawfulness of the Council’s and Welsh Minister’s past and future exercise of their enforcement functions, it is clear to us that their failure to take urgent and decisive enforcement action against the breach of planning control in this case constitutes maladministration and sets a terrible precedent. 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.

THE FACTS   

  1. MSWL extracts coal from the Site for use in industrial and non-industrial uses.
  2. Planning permission for the extraction of coal on the Site was first granted on 11 April 2005 by way of appeal decision APP 152-07-014. That permission was varied pursuant to a further appeal decision dated 6 May 2011 (“the Planning Permission”). Conditions 3 and 4 of the Planning Permission required extraction from the Site to cease no later than 6 September 2022 and site restoration to be completed by 6 December 2024.
  3. On 1 September 2022, five days short of the date by which all extraction was to cease, MSWL sought permission under section 73 of the Town and Country Planning Act to extend the date by which extraction from the Site must cease to 6 June 2023 and the date by which site restoration must be completed to 6 September 2025 (“the Planning Application”).[3]
  4. The Planning Application was accompanied by an addendum to the environmental statement prepared in 2005 (‘the ES Addendum’), but not by a full environmental statement. The 2005 environmental statement did not address the climate change impacts of the development and nor did the ES Addendum: there is no assessment of the likely greenhouse gas emissions attributable to the proposed extension of the life of the development.
  5. Extraction of coal from the Site continued beyond 6 September 2022 in breach of planning control. As early as 12 September 2022, the Council began to receive reports of continued coaling on the Site in breach of planning control. On 27 September 2022, local residents were supplied with a statement from the Council via their Assembly Member stating:

“If coal mining operations continue on site, this would result in a breach of the planning conditions and may be subject to enforcement action. At this stage because a planning application has been submitted, which seeks to amend to the current permission and enable operations to continue on site, it would not normally be expedient to take enforcement action until that application has been determined…”

  1. The Council’s position, therefore, was that it would consider the expediency of enforcement action only after considering the acceptability, in planning terms, of the proposed development.
  2. On 18 October 2022, the Welsh Ministers issued a holding direction under Article 18(1) of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012. The effect of the direction was to restrict the ability of the Council to grant planning permission until the Welsh Ministers had considered whether to exercise their call-in powers to determine the Planning Application themselves.
  3. On 21 December 2022, the Council issued a screening opinion (‘the First Screening Opinion’). On the basis that the proposal was to extend for nine months development that had previously been assessed as acceptable (subject to mitigation), it concluded that the proposed extension was not EIA development. It said:

In conclusion, the Authority is of the opinion that the proposed development, either alone or in combination, is unlikely to have a significant adverse effect on the environment.  The extension of 9 months to complete the development previously approved will extend the impacts of the development. However, these impacts have previously been assessed as being at an acceptable level subject to mitigation and limitations provided by planning conditions. There is no proposed change to the method of working and therefore no environmental impacts are envisaged over and above those experienced as part of the 2005 planning permission.  As such, the likely effect of the development is unlikely to be significant enough to warrant an EIA.

The First Screening Opinion did not address the climate change impacts of, or greenhouse gas emissions attributable to, the proposed extended life of the development.

  1. On 12 January 2023, Coal Action Network wrote to the Council to seek confirmation of whether active coal mining had continued at the Site beyond 6 September 2022. On 20 January 2023, David Cross, Principal Planning Officer at the Council, replied, confirming that the Council understood – apparently on the basis of information provided by MSWL – that coal mining had ceased on the Site, pending the outcome of the Planning Application. That understanding was wrong. Active mining had taken place regularly since 6 September 2022. The Coal Authority’s production data demonstrates that MSWL extracted 102,505 tonnes of coal from the Site between 1 October and 31 December 2022, without planning permission.
  2. On 30 January 2023, Coal Action Network drew the Council’s attention to the Coal Authority evidence. On 2 February 2023, David Cross replied to say that he would review the information provided and would consider whether to escalate the matter with the Council’s enforcement team.
  3. On 3 March 2023, Richard Buxton solicitors (“RBS”) wrote to the Town Planning Division of the Council on behalf of Coal Action Network to request urgent enforcement action in relation to the ongoing breach of planning control. The letter set out why planning policy demanded enforcement action in this case and why any delay would render enforcement action nugatory. Noting that the Planning Application sought an extension of coaling to 6 June 2023, and noting that MSWL has already, by default, enjoyed six of those nine months of coaling, it said: “the development will soon effectively have been carried out without permission and the harm identified in Welsh Policy irrevocably caused, regardless of the decision that may eventually be made on the extension application.”
  4. The letter was copied to Welsh Ministers and noted that if the Council delayed in taking, or declined to take, enforcement action, Welsh Ministers would be asked to exercise their own enforcement powers.
  5. On 9 March 2023, solicitor to the Council, Geraint Morgan, replied to RBS, informing them that “the Council does not consider it would be a productive use of its officers’ time to provide a detailed response at present to the matters raised in the [RBS] letter.” It continued to note that the Council’s planning committee would consider the section 73 application on 26 April 2023 and “any issues pertinent to enforcement will be taken in light of the decision that is made by committee”.
  6. On 13 March 2023, RBS wrote to the Welsh Ministers drawing their attention to the ongoing breach of planning control, copying the correspondence between RBS and the Council and seeking the exercise of enforcement powers by Welsh Ministers. No response was received to that letter.
  7. On 31 March 2023, David Cross wrote to Coal Action Network confirming the following: “Whilst we were under the impression that the majority of the works being undertaken on site sought to address the slippages, and in part, works associated with the restoration of the site, it now appears that coal extraction has also continued alongside these activities.”
  8. Indeed, the Coal Authority’s production data shows that, in addition to the 102,505 tonnes of coal extracted from the Site between 1 October and 31 December 2022, MSWL had extracted a further 66,357 tonnes of coal, without permission, between 1 January and 31 March 2023. Notwithstanding this, Mr Cross confirmed the position as set out in the Council’s 9 March letter to RBS, namely that “any issues pertinent to enforcement” would only be considered after 26 April 2023, once the Council had resolved whether it would grant the Planning Application.
  9. On 3 April 2023, RBS wrote a pre-action letter to the Council and the Welsh Ministers alleging that the Council had acted unlawfully by: i) failing to consider enforcement action as a prior and separate question to whether to grant planning permission; and/or ii) failing to take enforcement action against the ongoing breach of planning control. The letter also alleged that the Welsh Ministers had acted unlawfully by failing to take any steps in relation to the ongoing breach of planning control.
  10. On 11 April 2023 and 22 April 2023 respectively the Council and the Welsh Ministers provided responses to RBS’s pre-action letter and denied they had acted unlawfully. The Welsh Ministers maintained it was reasonable to wait for the Council to take a decision on the Planning Application before consideration of enforcement and asserted that the scheme of the legislation “makes it clear that the local planning authority is the principal decision maker in relation to [enforcement] functions”.
  11. On 11 April 2023, the Council gave notification that MSWL had varied the Planning Application and now sought permission for an extension of coaling to 31 March 2024. No update to the ES Addendum was provided, notwithstanding the additional nine months of coaling proposed. On 18 April 2023, the Council issued a further screening opinion (‘the Second Screening Opinion’) concluding that the further proposed extension was not EIA development because:

“The extension of extraction operations until 31 March 2024 and a delay in the completion of final restoration until 30 June 2026 in order to complete the development previously approved will extend the impacts of the development. However, these impacts have previously been assessed as being at an acceptable level subject to mitigation and limitations provided by planning conditions. There is no proposed change to the method of working and therefore no environmental impacts are envisaged over and above those experienced as part of the 2005 planning permission. As such, the likely effect of the development is unlikely to be significant enough to warrant an EIA.”

The Second Screening Opinion did not address the climate change impacts of the proposed extended life of the development.

  1. On 17 April 2023, the Council’s Planning Officer, Judith Jones, prepared a report for the Planning Committee, recommending the Committee refuse permission for the Planning Application, as varied. On 25 April 2023, the Planning Committee unanimously voted to refuse permission for the Planning Application, as varied. The reasons for refusal were set out in a decision notice dated 27 April 2023, which stated:
    1. “The proposed development fails to clearly demonstrate that the extraction of coal is required to support industrial non-energy generating uses; that extraction is required in the context of decarbonisation and climate change emission reduction; to ensure the safe winding-down of mining operations or site remediation; or that the extraction contributes to Welsh prosperity and a globally responsible Wales. The proposed development therefore, fails to meet the test of 'wholly exceptional circumstances,' contrary to Planning Policy Wales 11, the Coal Policy Statement and Policy EcW11 of the Merthyr Tydfil County Borough Council Replacement Local Development Plan 2016-2031.
    2. The proposed development fails to provide an adequate contribution towards the restoration, aftercare and after-use of the site, to the detriment of the surrounding environment, contrary to the requirements of Policies EnW5 and EcW11 of the Merthyr Tydfil County Borough Council Replacement Local Development Plan 2016-2031. Therefore, no local or community benefits would be provided that clearly outweigh the disbenefits of the lasting environmental harm of the development.”
  2. On 27 April 2023, RBS wrote to the Council and Welsh Ministers seeking urgent enforcement action, involving the service of a temporary stop notice to ensure the unconsented activity was brought to an end immediately, followed by the service of an enforcement notice as soon as the expediency of such a course was determined.
  3. On 28 April 2023, the Welsh Ministers indicated that it was for the Council to decide whether to take enforcement action and only once it had taken a decision would the Welsh Ministers consider enforcement action.
  4. On 2 May 2023, the Council replied indicating that it had commenced an enforcement investigation and would not comment further until the conclusion of that investigation. There is no evidence that the Council had taken any significant steps to investigate enforcement prior to the refusal of planning permission.
  5. In May 2023, the Coal Authority inspected the Site and found the operator working coal, without planning permission and beyond the agreed licence boundary.
  6. On 24 May 2023, the Council served the EN requiring MSWL and any other person with an interest in the Site to cease the extraction of coal from the Site and cease carrying out development at the Site other than wholly in accordance with the approved restoration and management strategy. The EN, as drafted, takes effect on 27 June 2023 with compliance required within a further 28 days. That means that it will be a criminal offence to continue coaling beyond 25 July, unless an appeal is made against the EN.
  7. We have been provided with drone footage which appears to show the continuation of active coaling on the site as late as 15 June 2023. [4] Despite requests to do so the Council has failed to serve a stop notice requiring the cessation of the unauthorised activity pending the date for compliance set by the EN.

THE LEGAL CONTEXT

Wellbeing of Future Generations

  1. Pursuant to section 3 of the Well-being of Future Generations (Wales) Act 2015 (“the 2015 Act”) the Council and the Welsh Ministers are under a duty in the exercise of their functions to take all reasonable steps towards achieving the well-being objectives.
  2. In relation to the Welsh Ministers’ well-being objectives, the seventh is to “Build a stronger, greener economy as we make maximum progress towards decarbonisation.” Well-being objective nine is to: “Embed our response to the climate and nature emergency in everything we do.”

Planning permission and EIA

  1. Planning permission is required for the carrying out of any development of land, including mining operations: section 57(1) Town and Country Planning Act 1990 (‘the 1990 Act’).
  2. A planning authority must not grant planning permission or subsequent consent for EIA development unless an EIA has been carried out in respect of that development: Town and Country (Environmental Impact Assessment) Regulations 2017 (‘the 2017 Regulations’). EIA development includes Schedule 1 development and Schedule 2 development that is likely to have significant effects on the environment. Schedule 1 development includes open-cast mining where the surface area of the site exceeds 25 hectares. Schedule 2 development includes any change to or extension of development of a description listed in Schedule 1.
  3. Where it appears to a relevant planning authority that proposed development is Schedule 2 development, it must provide a written statement expressing the planning authority’s opinion as to whether the development “is likely to have significant effects on the environment” and is thus EIA development: regs 2 and 8 of the 2017 Regulations. In reaching that opinion, the characteristics of the development must be considered with particular regard to certain factors set out in Schedule 3 of the 2017 Regulations, including pollution.

Enforcement powers

  1. Part VII of the 1990 Act addresses enforcement of planning control. Section 171A(1) provides that a “breach of planning control” is constituted by:

“(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted…”.

  1. Section 171A(2) provides, amongst other things, that the issue of an enforcement notice and the service of a breach of condition notice constitute “enforcement action”.
  2. Section 172 provides:

“(1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them ­

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.”

  1. Section 182 (as applied to the Welsh Ministers by article 2 and schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999) provides:

“(1) If it appears to the Secretary of State to be expedient that an enforcement notice should be issued in respect of any land, he may issue such a notice.

(2)The Secretary of State shall not issue such a notice without consulting the local planning authority.

(3)An enforcement notice issued by the Secretary of State shall have the same effect as a notice issued by the local planning authority.”

  1. The Planning Encyclopaedia at 182.01 notes that

“[s]trictly, and in contrast to s.172, there are no express tests of it having to appear to the Secretary of State that there has been a breach of planning control and having to have regard to the provisions of the development plan and to any other material considerations. However, there is no good reason to infer that the Secretary of State could lawfully issue an enforcement notice without first applying these tests. They are of course very likely to arise in consultation with the local planning authority in any event.”

  1. An enforcement notice must give 28 days notice before it takes effect (section 172(3)) and must specify the period at the end of which activities are required to have ceased (section 173(9)). If an appeal is made against the enforcement notice, the notice has no effect until the final determination or withdrawal of the appeal (section 175(4)).
  2. Where there is non-compliance with an enforcement notice, then: i) the owner of the land is guilty of an offence, as is any person who has control of or an interest in the land who carries on or permits an activity required by the notice to cease (section 179); and ii) the local planning authority may enter the land and take the steps required to be taken by the notice, and recover the reasonable costs of so doing from the person who is owner of the land (section 178(1)).
  3. Section 171E of the 1990 Act provides for the issue of a temporary stop notice in circumstances where the local planning authority thinks (a) that there has been a breach of planning control in relation to any land, and (b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately. As explained in the explanatory memorandum to the Planning and Compulsory Purchase Act 2004, temporary stop notices are intended to give local planning authorities the means to prevent unauthorised development at an early stage without first having had to issue an enforcement notice. It allows them up to 28 days to decide whether further enforcement action is appropriate and what that action should be, without the breach intensifying by being allowed to continue.
  4. Section 183 of the 1990 Act provides a planning authority with power to serve a stop notice where it considers it expedient that any activity specified in an enforcement notice should cease before the expiry of the period for compliance with an enforcement notice. The effect of a stop notice is to prohibit the carrying out of the activity. Section 184 of the 1990 Act provides that the notice must specify the date on which it will take effect and that date must not be earlier than three days after the date when the notice is served unless the planning authority considers there are special reasons for specifying an earlier date.
  5. Section 185 of the 1990 Act (as applied to the Welsh Ministers by article 2 and schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999) provides that a stop notice may be served by the Welsh Ministers, after consultation with the local planning authority.
  6. Section 186 provides that, in certain circumstances, compensation may be payable for loss and damage directly attributable to the prohibition in the notice. However, compensation is not payable, inter alia:
    1. solely because an appeal against the underlying enforcement notice succeeds on ground (a) in s 174(2) of the 1990 Act e.g. solely because on appeal planning permission is granted; or
    2. in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control.
  7. In Huddlestone v Bassetlaw District Council [2019] PTSR at [26] Lindblom LJ highlighted that this provision reflects the thinking of Robert Carnwath QC, in his report of February 1989 ‘Enforcing Planning Control’ that:

“if the Act made clear that compensation will not in any circumstances be payable for a use or operation which is in breach of planning control, there would be less concern at the risks of a notice failing on a technicality, and the use of stop notices in appropriate cases would be encouraged”: para 9.5.”

Relevant case law

Discretion over enforcement

  1. As a general rule, enforcement authorities enjoy a wide discretion as to the use or non-use of enforcement powers: see R (Easter) v Mid Suffolk DC [2019] EWHC 1574. In R (Community Against Dean Super Quarry Limited) v Cornwall Council [2017] EWHC 74 (Admin), Hickinbottom J. summarised the position as follows:

“25. Where a developer is acting in breach of planning control, the statutory scheme assigns the primary responsibility for deciding whether to take enforcement steps – and, if so, what steps should be taken and when – to the relevant local authority. The statutory language used makes it clear that the authority’s discretion in relation to matters of enforcement – if, what and when – is wide. That is particularly the case in respect of enforcement notices, the power to issue a notice arising only “where it appears to them… that it is expedient to issue the notice”. That is language denoting an especially wide margin of discretion. Any enforcement decision is only challengeable on public law grounds. Because of the wide margin of discretion afforded to authorities, where the assertion is that the decision made is unreasonable or disproportionate, the court will be particularly cautious about intervening. Intervention is likely to be rare. However, circumstances may make it appropriate. In Ardagh Glass, because the four-year period for enforcement was imminently to expire, a failure on the part of the planning authority to take prompt enforcement steps would have meant that the development would achieve immunity. In that case, the court ordered immediate enforcement action to be taken.”

  1. In Ipswich BC v Fairview Hotels [2022] EWHC 2868 (KB), Holgate J. endorsed the statement of HHJ Mole QC in Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin) that “expedience” indicates the balancing of the advantages and disadvantages of taking a particular course of action and said the following:

“So, even though the authority may be satisfied that a breach of planning control has occurred, they may consider it not expedient to issue an enforcement notice because on balance the use causes no planning harm at all, or is beneficial, or may cause insufficient harm to justify the taking of any enforcement action. Alternatively, the authority's conclusions on expediency may determine the nature and extent of any enforcement action they decide to take.”

  1. As such, a decision on the expediency of enforcement action requires an active weighing of the advantages and disadvantages of enforcement. While the enforcement authority will have a wide margin of discretion in that exercise, it must address its mind to the question properly, and must reach a decision that is reasoned and lawful in public law terms.
  2. In determining whether it is expedient to take enforcement action, an enforcement authority must take into account the development plan and other material considerations. However, there may be circumstances in which it is not only expedient but necessary to take enforcement action prior to a final determination of the planning merits of the unauthorised development. In Ardagh Glass, HHJ David Mole QC quashed the defendant council’s decision that it was not expedient to serve an enforcement notice prior to a decision on planning permission and made a mandatory order requiring the council to issue an enforcement notice requiring the removal of unauthorised buildings. In that case, the developer had built and operated a glass factory without planning permission and without having carried out an EIA. It subsequently made a retrospective application for planning permission accompanied by an EIA to the local planning authority. The claimant and the local planning authority disagreed about the relevant date on which the development would become immune from enforcement action. In any case, the local planning authority was unwilling to issue an enforcement notice while it was considering whether to grant planning permission and said it was “for them to decide whether and when it is expedient to take enforcement action”.
  3. The judge held at [46] that “it would be a betrayal by the planning authorities of their responsibilities and a disgrace upon the proper planning of this country” for the development to become immune from enforcement action while the local planning authority was considering whether to grant planning permission. He found at [64] that the local planning authority had erred in concluding it was not expedient to issue an enforcement notice. Separately, the judge concluded at [110] that to permit the development to achieve immunity would amount to a breach of the UK’s obligations under the EIA Directive.
  4. On appeal in the Court of Appeal [2011] PTSR, Sullivan LJ at [22] rejected the submission that the Court should also have made a mandatory order for the service of a stop notice. An enforcement notice was, he concluded, sufficient to ensure the removal of the unauthorised EIA development if retrospective planning permission was not granted.
  5. In An Application by Friends of the Earth Limited for Judicial Review [2017] NICA 41, the courts of Northern Ireland addressed a different situation where the service of a stop notice was arguably required. The case related to unauthorised extraction of sand from a freshwater lough which was considered likely to have significant effects on the environment. Under the applicable regime in Northern Ireland, the Department of the Environment served an enforcement notice on the landowner and those responsible for the extraction to cease the dredging of the lough. The enforcement notice identified specific concerns relating to compliance with the EIA Directive and the Habitats Directive. The landowner and those responsible for the extraction appealed against the enforcement notice, with the effect that it had no effect pending the final determination or withdrawal of the appeal, and the sand extraction continued. The Minister decided not to issue a stop notice because he considered it disproportionate “where there is no evidence that dredging… is having any impact on the environmental features of the lough”. Friends of the Earth challenged that decision by way of judicial review, alleging that the failure to issue a stop notice was an unlawful exercise of the Minister’s discretion.
  6. At first instance, Maguire J. dismissed the claim, relying on the judgment of Sullivan LJ in Ardagh Glass. On appeal from the first instance judgment of Maguire J, the Court of Appeal in Northern Ireland distinguished Ardagh Glass as follows:

“[30] Maguire J referred to paragraph [22] of Ardagh Glass Ltd as being in point in the present cases. There was an Enforcement Notice already in existence, the issue was whether a Stop Notice had to be served and there was also an appeal against the Enforcement Notice. It was stated that Sullivan LJ plainly viewed his conclusion on the point as not inconsistent with EU law and Maguire J stated that he was inclined to follow that view.

[31] Maguire J rejected the proposed distinction of the decision in Ardagh Glass Ltd based on the possibility of rectifying the damage in Ardagh by requiring the building to be removed if planning permission was not granted, whereas in the present case it was not possible to return extracted sand.

[32] This Court is of the opinion that there is a distinction to be made between Ardagh Glass Ltd and the present case and that it bears on the application of the principles to be applied. In Ardagh Glass Ltd it was found that the issue of an Enforcement Notice was sufficient to ensure the removal of the unauthorised development if retrospective planning permission was not granted. While the workings might continue in the meantime, it was recognised that ultimately, if necessary, the unauthorised development, in the form of the factory structure, could be removed. However the present case is different in character. There is no such structure to be removed in the event that planning permission is ultimately refused. The unauthorised development is the excavation which cannot be reinstated. Of course, as in Ardagh Glass Ltd, there will also be the ongoing operations at the site but the focus is on the structure rather than the workings. In the present case the issue of the Enforcement Notice will not be sufficient to ensure the removal of the unauthorised development in the form of the excavation between now and the refusal of planning permission. The material extracted is irreplaceable. Therefore the basis on which no Stop Notice was issued in Ardagh Glass Ltd does not apply in the present case.”

  1. The Court reasoned that the precautionary principle applied to the question of whether to issue the stop notice and operated on the basis that there should be no planning permission until it was established that there was no unacceptable impact on the environment: at [34] “[t]he proper approach is to proceed on the basis that there is an absence of evidence that the operations are not having an unacceptable impact on the environment” (emphasis in the original). Accordingly, the Court held that the decision to issue a stop notice was one over which the decision maker had discretion but – in the circumstances of that case – concluded that the discretion had been exercised unlawfully and quashed the decision.

 THE POLICY CONTEXT

Development Management Policy

  1. Paragraph 14.2.2 of the Development Management Manual provides that the carrying out of development without first obtaining permission should be discouraged, and that “wilful disregard for the need for planning permission is not to be condoned.” Paragraph 14.7.1 provides:

“Where an LPA considers that an unauthorised development is causing unacceptable harm to public amenity, and there is little likelihood of the matter being resolved through negotiations or voluntarily, they should take vigorous enforcement action to remedy the breach urgently, or prevent further serious harm to public amenity.”

  1. In a letter dated 17 October 2018, the Chief Planner, Planning Directorate, Welsh Government emphasised the importance of timely use of enforcement powers (‘the Chief Planner’s 2018 Letter’) and highlighted the serious risks posed to trust and confidence in the planning system of failures to take timely enforcement action. It notes:

“An effective development management system requires proportionate and timely enforcement action to maintain public confidence in the planning system but also to prevent development that would undermine the delivery of development plan objectives.

The Welsh Government enforcement review concluded, whilst the system is fundamentally sound, it can struggle to secure prompt, meaningful action against breaches of planning control. The system can also be confusing and frustrating for complainants, particularly as informed offenders can intentionally delay enforcement action by exploiting loopholes in the existing process…

Section 3.6 of Planning Policy Wales is clear; enforcement action needs to be effective and timely. This means that Local Planning Authorities should look at all means available to them to achieve the desired result. In all cases there should be dialogue with the owner or occupier of land, which could result in an accommodation which means enforcement action is unnecessary.

…Section 14.2 of the Development Management Manual… deals with how this policy should be implemented. Paragraph 14.2.5 is particularly useful in that it explains how the dialogue with the owner or occupier is one aspect of dealing with an enforcement case but it should not be a source of delay or indecision.”

Coal policy in Wales

  1. Welsh Government Policy on the extraction and use of coal is clear: “the presumption will always be against coal extraction.” This includes the extension of existing coaling operations. The Coal Policy Statement provides:

“The opening of new coal mines or the extension of existing coaling operations in Wales would add to the global supply of coal having a significant effect on Wales’ and the UK’s legally binding carbon budgets as well as international efforts to limit the impact of climate change. Therefore, Welsh Ministers do not intend to authorise new Coal Authority mining operation licences or variations to existing licences.  Coal licences may be needed in wholly exceptional circumstances and each application will be decided on its own merits, but the presumption will always be against coal extraction.

Whilst coal will continue to be used in some industrial processes and non-energy uses in the short to medium term, adding to the global supply of coal will prolong our dependency on coal and make achieving our decarbonisation targets increasingly difficult. For this reason, there is no clear case for expanding the supply of coal from within the UK. In the context of the climate emergency, and in accordance with our Low Carbon Delivery Plan, our challenge to the industries reliant on coal is to work with the Welsh Government to reduce their reliance on fossil fuels and make a positive contribution to decarbonisation.

Planning Policy Wales (PPW 11) already provides a strong presumption against coaling, with the exception of wholly exceptional circumstances, and Local Planning Authorities are required to consider this policy in the decisions they make.”

  1. Planning Policy Wales (“PPW”) provides that proposals for opencast mines should not be permitted:

“5.10.14 Proposals for opencast, deep-mine development or colliery spoil disposal should not be permitted. Should, in wholly exceptional circumstances, proposals be put forward they would clearly need to demonstrate why they are needed in the context of climate change emissions reductions targets and for reasons of national energy security.”

  1. PPW acknowledges that exceptionally proposals for industrial uses for coal might come forward and would need to be considered individually against, inter alia, the policies in MTAN 2: Coal.

 ANALYSIS

  1. Planning permission for the extraction of coal on the Site expired on 6 September 2022. Any coaling beyond that date is in breach of planning control. The Council’s refusal of the s 73 application on 26 April 2023 demonstrates that the unauthorised development is unacceptable in planning terms.
  2. Notwithstanding the absence of planning permission and the service of the EN, there is compelling evidence that coaling continues on the Site. It seems likely that coaling will continue for the duration of any appeal against the EN. Accordingly, in the absence of a stop notice, it is likely that MSWL will have enjoyed the full benefits of the 18 month extension to the Planning Permission it sought, with none of the attendant mitigations or obligations that might have been imposed through a s 73 permission.[5]
  3. It appears to us that MSWL has demonstrated a “wilful disregard for the need for planning permission" which the Development Management Manual says should not be condoned. MSWL has adopted a deliberate strategy to use the planning system to its advantage to ensure it can continue to extract coal for as long as possible, notwithstanding the breach of planning control. The Council and the Welsh Ministers have enabled that strategy by failing to discharge their enforcement functions effectively. This is exactly the situation the Chief Planner sought to discourage through his 2018 letter and the exact opposite of the “vigorous enforcement action to remedy the breach urgently” encouraged by the Development Management Manual.
  4. If the breach in this case related to the erection of an unauthorised structure that could be removed at the conclusion of a prolonged enforcement process, that would be one thing. But this case relates to the ongoing extraction of coal. As in the Friends of the Earth case, the ongoing breach of planning control can never be remedied: the coal cannot be put back into the ground; the greenhouse gas emissions attributable to the development can never be un-emitted.
  5. We consider that the factors in favour of urgent enforcement action in this case are even more compelling than in Friends of the Earth. By contrast to that case, planning permission has now been refused and the planning harm of the unauthorised development confirmed. The effect of the Council’s and Welsh Ministers’ current enforcement approach is to allow an extensive period of coaling, without permission and without the constraints of planning conditions or obligations, when the activity is contrary to national and local planning policy and causes demonstrable planning harm. That approach undermines public confidence and brings the planning system into disrepute.
  6. In the 1989 Report that formed the basis for the enforcement regime introduced in Part VII of the 1990 Act, Robert Carnwath QC suggested three primary objectives for an effective enforcement system:[6]
    1. bringing an offending activity within planning control;
    2. remedying or mitigating its undesirable effects; and
    3. punishment or deterrence.
  7. The approach of the Council and Welsh Ministers in this case has failed to achieve any of those objectives.

 The unauthorised development is likely to be EIA development

  1. We consider the unauthorised development is likely to be EIA development because it is Schedule 2 development which is likely to have significant effects on the environment. It has not, however, been subjected to proper scrutiny under the EIA Regulations.
  2. Although the Council’s First and Second Screening Opinions concluded the proposed nine- and 18-month extensions were not EIA development, we consider those screening opinions were legally flawed. Both concluded that all the impacts of the proposed extensions to the Planning Permission had been assessed in 2005 when it was first granted. That was wrong. In particular, none of the climate change effects of the development had ever been assessed. That is because the requirements of EIA, and the policy context, have evolved since 2005.
  3. It is not mandatory, in all cases, to assess the climate change effects of development as part of a screening opinion. However, in the context of national planning policy that imposes a strong presumption against coal development on account of its contribution to climate change, we consider that local planning authorities in Wales are required to address the climate change effects of proposed coal development at the screening stage. Those effects would necessarily have included the ongoing operational emissions of the mine, including methane emissions. They may also have included the downstream emissions of burning more than half a million tonnes of extracted coal. As the Court of Appeal confirmed in Finch v Surrey County Council [2022] EWCA Civ 187 at [63], whether the downstream impacts of scope 3 greenhouse gas emissions were “indirect effects” of the development that needed to be assessed was a matter of fact and judgement for the local planning authority. In the context of national planning policy that includes a strong presumption against coal development on account of its downstream effects on climate change, it is arguable that, in Wales, those effects must be assessed in the EIA process as a matter of policy; but it is clear that a local planning authority must at least consider whether to include those downstream effects in its consideration of the likely significant effects of coal development.
  4. In this case, the Council failed to address the climate change effects of the development at all in its Screening Opinions because it erroneously thought that all the effects of development had been considered and approved prior to granting the Planning Permission.
  5. Operational emissions caused by an 18-month extension are likely to be in the region of 870,000 tonnes CO2e.[7] The downstream emissions from burning more than half a million tonnes of coal are in the region of 1.2 million tonnes CO2.[8] 2 million tonnes CO2e (a conservative estimate given the figures 870,000 + 1.2 million tonnes CO2) is the greenhouse gas equivalent of burning over 850 million litres of petrol.[9]  Put another way, 18 months of mining at this one mine would generate the equivalent of the annual greenhouse gas emissions attributable to about 155,000 residents of Wales.[10]
  6. While significance for the purposes of EIA is a matter of judgement, and there is no strict algorithm for assessing the significance of greenhouse gas emissions,[11] we consider it likely that the Council would have concluded that that scale of greenhouse gas emissions was likely to have significant effects on the environment.
  7. In any case, the First and Second Screening Opinions were premised on the Council’s 2005 conclusion that the impacts of development were acceptable “subject to mitigation and limitations provided by planning conditions”. The unauthorised development that is currently taking place on the Site is not subject to any mitigation or limitation provided by planning conditions or otherwise. It is wholly unauthorised and therefore wholly unconstrained. As a result, the First and Second Screening Opinions do not answer the question of whether the unauthorised development is EIA development. For all these reasons, we consider that the unauthorised development is likely to be, or at least arguably is, EIA development.

The Council’s failure to consider enforcement action prior to its decision on planning permission was arguably unlawful

  1. Between 6 September 2022 and January 2023, the Council appears to have been under the misapprehension – apparently in reliance on information provided by MSWL – that there was no breach of planning control at the Site because active coaling had ceased on 6 September 2022. Whether that misapprehension was reasonable is unclear: local residents had informed the Council as early as 12 September 2023 that unauthorised coaling continued on the Site. In any case, since 30 January 2023 at the latest, the Council knew or ought to have known that:
    1. There had been a persistent breach of planning control at the Site because active coaling had continued without any significant pause since 6 September 2022.
    2. That breach of planning control was serious because it involved an activity that is prima facie contrary to the Welsh Government’s strong presumption against coal development.
  2. That strong presumption existed because of the significant effect of new or extended coal development on Wales’s and the UK’s legally binding carbon budgets as well as international efforts to limit the impact of climate change.

Notwithstanding this knowledge, the Council adopted the inflexible position that – because a planning application was pending for the activity – it would first consider whether it would grant planning permission before considering enforcement. It identified 26 April 2023 as the date on which the Planning Application would be considered and determined that enforcement action would only be considered after that date. We consider that approach was arguably unlawful because it amounted to the fettering of a statutory discretion and/or because it was irrational in the circumstances.

  1. A local planning authority’s enforcement powers are separate from its powers to grant or refuse planning permission. It is an unlawful fettering of discretion to adopt an inflexible approach always to defer a decision on enforcement until after an extant planning permission is determined: see British Oxygen Co Ltd v Minister of Technology [1971] AC 610 at 625D per Lord Reid.
  2. Where a planning application is pending for development that is clearly in breach of planning control, it may not normally be expedient to take enforcement action until that application has been determined. However, there will be circumstances, such as those in the Ardagh Glass and Friends of the Earth cases where enforcement action is required pending the determination of a planning application.
  3. We consider that the underlying rationale in the Ardagh Glass and Friends of the Earth cases is that enforcement authorities must not, through their inaction pending the determination of a planning application for unauthorised development or an appeal against an enforcement notice, deprive themselves of the ability to take effective enforcement action should the development be found to be unacceptable in planning terms. In Ardagh Glass, this required the service of an enforcement notice before the date on which the development arguably became immune from enforcement. In Friends of the Earth, this required consideration of a stop notice to “hold the ring” and prevent irremediable harm to the environment pending the outcome of an appeal against an enforcement notice. Where the development at issue is likely EIA development, this principle takes on greater force.
  4. In this case, the Council’s failure to consider exercising its enforcement function prior to determining the Planning Application was arguably an unlawful fettering of discretion and/or irrational on account of the fact that the following circumstances demanded that enforcement be considered prior to the end of April 2023:
    1. The unauthorised activity was likely EIA development that had not been subject to EIA.
    2. The unauthorised activity was prima facie contrary to an important element of Welsh Government policy, namely the strong presumption against coal extraction.
    3. Delay in considering enforcement until after 26 April 2023 would have the de facto effect of granting (essentially) all the benefits of the Planning Application, with none of the mitigations that might ordinarily be imposed through planning conditions or obligations. Even if an enforcement notice were served on 27 April 2023, it could not take effect until 25 May 2023, some 12 days short of the end of the nine-month period for which planning permission was initially sought.
  5. As in the Friends of the Earth case, the breach of planning control could not be remedied: the coal could not be put back in the ground, the operational and downstream emissions could not be un-emitted.
  6. The situation was of MSWL’s making. It was open to MSWL to make an application for an extension to its existing Planning Permission well in advance of its expiry but instead MSWL chose to submit the application only 5 days short of expiry in an apparent attempt to “game the system”. Moreover, MSWL appears not to have been candid with the Council about its intention and subsequent action to continue active coaling in breach of planning control.
  7. Without prompt service of an enforcement notice, there would be no consequence for MSWL’s unauthorised development and no deterrent effect for other operators considering similar breaches of planning control:
    1. because the Council could not, at a future date, reasonably require it to “put back” the coal extracted without permission, there was no risk of significant future expenditure for MSWL in returning the land to its former state (beyond what is already required by the restoration plan which forms part of the Planning Permission);
    2. without service of an enforcement notice, MSWL could enjoy the profits of its unauthorised coaling without the risk of having the gross receipts confiscated under the Proceeds of Crime Act 2002 (see R v Luigi del Basso [2011] 1 Cr. App. R. (S.) 41).
  8. For these reasons, a delay in consideration of enforcement until after 26 April 2023 would clearly undermine public confidence, bring the planning system into disrepute, and set a harmful precedent that would fail to deter, and might encourage, other developers of land to act in a similar manner.
  9. In suggesting that the approach adopted by the Council was arguably irrational we do not say there was only one rational approach available to the Council. There were a range of options available to the Council to enable it to address the breach of planning control pending the determination of the Planning Application. It could have:
    1. investigated reports of a breach of planning control when first drawn to its attention in September 2022;
    2. engaged in dialogue with MSWL to seek its agreement to stop coaling without the need for enforcement action;
    3. issued a temporary stop notice to give time to consider appropriate enforcement action and/or to expedite determination of the Planning Application;
    4. served an enforcement notice;
    5. expedited the consideration of the Planning Application.
  10. To have done none of these things but instead simply deferred consideration of all enforcement matters until after the Committee’s consideration of the Planning Application on 26 April 2023 – almost eight months into the nine-month period for which planning permission was initially sought – was arguably an unlawful fettering of discretion and/or Wednesbury

 The Council’s failure to serve a stop notice is arguably unlawful

  1. MSWL has demonstrated a willingness to game the planning system and operate in breach of planning control where there are no consequences for doing so. Should the EN take effect on 27 June 2023, there will be criminal consequences for non-compliance from 25 July 2023. However, if MSWL appeals the EN (which seems likely), there will be no consequences for that continuing breach of planning control until the final determination of the appeal.
  2. In the circumstances, the clear and obvious solution is for the Council to serve a stop notice before 27 June 2023 or as soon as possible after MSWL appeals the EN.[12] We consider it so clear and obvious that a decision not to do so would arguably be unlawful.
  3. The parallels between this case and the Friends of the Earth case are clear. Each day of dredging in that case / coaling in this case causes irremediable harm. As the Court of Appeal in Northern Ireland noted:

“the unauthorised development is the excavation which cannot be reinstated… the issue of the Enforcement Notice will not be sufficient to ensure the removal of the unauthorised development in the form of the excavation between now and the refusal of planning permission. The material extracted is irreplaceable.”

  1. In circumstances where MSWL appeals the EN, the failure to serve a stop notice will have the de facto effect of granting MSWL all the benefits of the planning permission it was refused, with none of the mitigations that would otherwise have been imposed on that permission, and permitting the harm which underpinned the Council’s decision to refuse planning permission.
  2. In the exercise of its statutory functions, the Council must address the question of whether it is expedient to serve a stop notice. In doing so it must balance the advantages and disadvantages of doing so. In the circumstances as set out above, it is very difficult to see how, rationally, the Council could conclude that the disadvantages of serving a notice outweigh the advantages. Indeed, it is not clear to us that there are any disadvantages to weigh in the balance.[13]
  3. There is no realistic prospect of MSWL recovering compensation in respect of the stop notice. As the Court of Appeal highlighted in Huddlestone, section 186 of the 1990 Act does not permit compensation in respect of any activity which constitutes a breach of planning control. It is drafted in this way precisely to encourage enforcement authorities to serve stop notices in appropriate cases, like this one.

 The Welsh Ministers failure to consider issuing an enforcement notice before the Council took its own decision was arguably unlawful

  1. Under section 182 of the 1990 Act, the Welsh Ministers have a power to issue an enforcement notice if, after consultation with the local planning authority, they consider it expedient to do so. The position of the Welsh Ministers in correspondence in this case was that they would only consider exercising their discretion to issue a notice if and after the Council had decided not to do so.

 

  1. That position was arguably unlawful because it amounted to a fettering of an independent statutory discretion. While the Welsh Ministers must consult with the Council before issuing an enforcement notice, their discretion is not constrained by the Council’s consideration of enforcement. In (Hammerton) v London Underground Ltd [2003] J.P.L. 984 Ouseley J. said at [139]:

“[a] lawful positive decision to the effect that it would not be expedient for the purposes of section 172 to issue an enforcement notice would eventually lead to the development in breach becoming lawful with the passage of time but of itself would not stop the permission lapsing. A lawful positive decision by a local authority cannot without more preclude the exercise by the Secretary of State of his default powers under section 182”.

  1. Thus, it should be noted that: (i) a decision by the local planning authority that enforcement action is not expedient cannot preclude the Secretary of State taking a different view and exercising the powers available under section 182; and (ii) the powers conferred by section 182 are referred to as “default powers”. In relation to this in v Hereford and Worcester CC Ex p. Smith (Tommy) [1993] 4 WLUK 79 [1994] C.O.D. 129 it is referred to as a “reserve power”.
  2. These phrases (“default powers” and “reserve power”) indicate that while it may be a lawful approach for the Welsh Ministers normally to defer to a local planning authority in the first instance on enforcement matters, the Welsh Ministers must not close their mind to the possibility, in an appropriate case, of taking enforcement action where a local planning authority is failing to “secure prompt, meaningful action against breaches of planning control” as required by policy. We consider this to be exactly such a case. In that regard, we refer to the factors at paragraph 84(a) and (c)-(g) above and note in addition that:
    1. On 18 October 2023, the Welsh Ministers issued a holding direction in relation to the Planning Application. That holding direction was the exercise of a statutory function by the Welsh Ministers to ensure they would have meaningful control over whether a nine-month extension of coaling at the Site should be permitted.
    2. The Council’s indication that it would not consider enforcement action until after 26 April 2023 had the de facto effect of depriving the Welsh Ministers of any meaningful call-in function and any meaningful enforcement function. If the Welsh Ministers were to call in the application only after the Council resolved that it would grant planning permission, that call-in would be a pantomime: MSWL would already have enjoyed the nine months of coaling for which it sought permission. Similarly, if the Welsh Ministers were to consider enforcement only after the Council had done so, it would be doing so after the nine month period for which planning permission was sought.
    3. Welsh Ministers must, when exercising their functions, take all reasonable steps towards, inter alia, making maximum progress towards decarbonisation and embedding their response to the climate and nature emergency in everything they do.
  1. In those circumstances, the Welsh Ministers were arguably required to at least consider issuing an enforcement notice prior to the Council’s decision on enforcement. Their failure to do so was arguably an unlawful fettering of discretion and/or irrational and/or a breach of s 3 of the 2015 Act. It had the effect of denuding the Welsh Ministers of any effective power of call-in and any effective power of enforcement in relation to a clear and serious breach of planning control which was, as a matter of policy, causing harm to decarbonisation efforts.

The Welsh Ministers must urgently consult with the Council and consider, independently, whether to serve a stop notice.

  1. Under section 185 of the 1990 Act, the Welsh Ministers have an independent statutory power to serve a stop notice if, after consultation with the local planning authority, they consider it expedient to do so. It is not a condition for the exercise of that power that the local planning authority has already considered and rejected the expediency of serving a stop notice.
  2. As set out above, the failure to serve a stop notice may have the de facto effect of granting MSWL all the benefits of the 18-month extension to the Planning Permission it was refused, with none of the mitigations that would otherwise have been imposed on that permission, and permitting the harm which underpinned the Council’s decision to refuse planning permission.
  3. The ongoing serious breach of planning control at the Site, and the Council’s ongoing failure to take prompt and effective enforcement action, is squarely before the Welsh Ministers. As a result, we consider their statutory enforcement powers are engaged and they are under a legal obligation to consult with the Council as a matter of urgency to consider what steps will be taken, and by whom, to ensure that coaling is not permitted to continue for an extended period in breach of planning control for the duration of any appeal against the EN.
  4. Unless the Council indicates, through consultation, an intention to serve a stop notice itself, the Welsh Ministers must consider whether it is expedient to do so themselves. They must balance the advantages and disadvantages of serving a stop notice. In the circumstances as set out above, it is very difficult to see how, rationally, the Welsh Ministers could conclude that the disadvantages of serving a notice outweigh the advantages. Indeed, it is not clear to us that there are any disadvantages to weigh.

NEXT STEPS

  1. We advise Coal Action Network to press the Council and the Welsh Ministers to serve a stop notice as a matter of urgency and/or to explain what other mechanism they intend to use to ensure that unauthorised coaling is brought to an end immediately. Should the Council and Welsh Ministers refuse to do so, we will advise on the merits of judicial review, including interim injunctive relief. In the abstract, and without knowledge of any special circumstances that might be revealed in correspondence, we consider that such a claim would have reasonable prospects of success.
  2. As for the Council’s and Welsh Ministers’ eight-and-a-half month delay in issuing an enforcement notice, we doubt there is much to be gained through litigation at this stage. However, we advise Coal Action Network to consider referring the matter to the Public Services Ombudsman for Wales. In our opinion, the collective failure to take prompt, meaningful action against the breach of planning control constitutes maladministration for the purposes of the Public Services Ombudsman (Wales) Act 2019. The Ombudsman has previously investigated complaints relating to failures to take effective enforcement action and has made recommendations for compensation.

 21 June 2023

JAMES MAURICI KC

Landmark Chambers

 

TOBY FISHER

Matrix Chambers

 [1] For the references and calculations behind these figures, see fns 7 – 11 below.

[2] See R. (Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 29569 per Lord Hoffmann at [69] “[i]n a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them … sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved.

[3] Application P/22/0237

[4] See https://shorturl.at/pAN19.

[5] If the Council had concluded that “wholly exceptional circumstances” had been made out, it might reasonably have been expected to require the mitigation of the climate change effects of the extension by, for example, requiring the developer to offset its emissions.

[6] Robert Carnwath QC, Enforcing Planning Control, HMSO February 1989.

[7] MSWL reported its 2021 emissions as 930,533 tonnes CO2e, excluding methane emissions.  (2021 Annual Accounts p 4, Companies House) Coal Authority quarterly reports indicate that total production in 2021 was 602,128; operational (non-methane) emissions were thus reported to be 1.55 tonnes CO2e per tonne of coal mined.  Assuming a rate of 1.5 tonnes CO2e per tonne of coal for the 500,000 tonnes coal estimated to be mined during an 18-month period leads to an estimate of approximately 750,000 tonnes CO2e.  Methane emissions from the Ffos-y-fran mine has been estimated to be 2,077 tonnes over a 9-month extension by Global Energy Monitor using methodology from Kholod et al, 256 Journal of Cleaner Production (2020), https://doi.org/10.1016/j.jclepro.2020.120489.  This equates to 4,154 tonnes over 18 months.  Using a conservative estimate of 30 for the global warming potential of methane to convert to carbon dioxide equivalent (see https://www.iea.org/reports/methane-tracker-2021/methane-and-climate-change) this equates to a further 124,620 tonnes CO2e. Or, in all, roughly 870,000 tonnes CO2e.

[8] The 2023 BEIS conversion factor for industrial coal is used (this being a conservative assumption, as the domestic coal conversion factor would produce a higher figure).  500,000 tonnes of coal x 2.39648 BEIS figure for tonnes of CO2e = 1.198 million tonnes CO2 equivalent.

[9] 2023 BEIS conversion factor for Petrol is 2.35 Kg CO2e per Litre.  851M Litres x 2.35 = 2 billion Kg or 2 Million tonnes.

[10] Per capita annual GHG emissions in Wales are 8.6 tonnes CO2e per person.  See https://www.gov.uk/government/statistics/uk-local-authority-and-regional-greenhouse-gas-emissions-national-statistics-2005-to-2020, statistical summary (30 June 2022).  Over an 18-month period this equates to 12.9 tonnes CO2e per person in Wales (8.6x1.5).  2 million/12.9 = 155,000.

[11] See the Institute of Environmental Management & Assessment (IEMA) Guide: Assessing Greenhouse Gas Emissions and Evaluating their Significance, Second Edition, February 2022.

[12] Section 183(3) of the 1990 Act provides that a stop notice may not be served where the related enforcement notice has taken effect. However, where an appeal against the enforcement notice is made (which must be done before the enforcement notice takes effect), section 175(4) suspends the effect of the enforcement notice until the appeal is finally determined or withdrawn. Accordingly, if there is an appeal against the EN, the Council may serve a stop notice at any time during the currency of the enforcement appeal. For reasons we have explained, however, we consider that a stop notice should be served urgently without waiting for an appeal to be made.

[13] We have considered whether the Council might judge that permitting the continued operation in breach of planning control might be desirable to enable the operator to make profits to plug a shortfall in its available capital for site restoration. We consider this would be an irrelevant consideration in the context of a decision on expediency.

Published: 22. 06. 2023

Ffos-y-fran: the UK's huge illegal coal operation

What is Ffos-y-fran?

A large opencast coal mine in Merthyr Tydfil, South Wales, mining primarily thermal coal. The mining company won planning permission in February 2005, after appealing its rejection. Opencast coal mining began in 2007, in the face of stiff local protest. On 06th September 2022, planning permission for the opencast coal mining came to an end, 15 years and 3 months after it started. See our other posts about Ffos-y-fran, key company and mine facts and figures, and our campaign timeline from September 2022.

What’s the scale of illegal mining?

Based on the most recently available official statistics from The Coal Authority, since planning permission ended, by the end of May 2023, nearly 300,000 tonnes of coal would have been mined without any attempt to stop it, at the climate cost of almost a MILLION tonnes of CO2. At a rate of over 1,000 tonnes each day, every day this goes on for, matters. Every day this illegal coal operation continues, produces the CO2 equivalent of burning 1.5 MILLION litres of petrol.

What do you mean by “illegal coal mining”?

Planning permission for the Ffos-y-fran coal mine ended on 06 September 2022. Not only does that mean the mining company, Merthyr (South Wales) Ltd, is in breach of planning control, it also means that it has no licence, as the Coal Authority require, as a condition of that licence, that the company has active planning permission to mine the coal – something that Merthyr (South Wales) Ltd hasn’t had for months.

Why hasn’t the local council/planning authority put a stop to this?

The local council (Merthyr Tydfil County Borough Council) refused calls by local residents to take enforcement action for 7 months because it claimed Merthyr (South Wales) Ltd was not mining coal at Ffos-y-fran, but was forced by Coal Action Network to eventually admit that actually, yes, coal mining had been happening.

Then the council refused to enforce the stop of illegal coal mining until after the application to extend Ffos-y-fran had been decided by Councillors on 26th April 2023, which is not unusual practice within planning… but given the irreversible, daily harm occurring at Ffos-y-fran, enforcement action should have been taken.

A month after the unanimous rejection of the Ffos-y-fran extension application by Councillors, no enforcement action has been taken.  The most recent reason given by the council is that they are ‘investigating’ and are trying to ‘hold meetings’ with Merthyr (South Wales) Ltd… all the while, the company nears the 9 month extension it originally applied for in illegal coal mining.

Why doesn’t the Welsh Government step in to stop its policies uphold its policies?

The Welsh Government has said that it wouldn’t intervene in Ffos-y-fran until the council decides whether it’ll take enforcement action or not. But the problem with this approach is that the council has already stalled, and failed to take expedient enforcement action to stop the ongoing coal mining. This inaction has so far resulted in 270,000 tonnes of coal, adding 840,000 tonnes of CO2 to our climate crisis - all without planning permission and in direct contravention of national policy.

Where’s the evidence?

There are multiple drone videos of ongoing coal mining, such as the one below filmed on 19th May 2023. There are also many photos of laden coal trucks leaving the Ffos-y-fran site and unloading at the nearby coal depot with coal trains arriving and leaving, and lorries of customers coming and going. This is happening at a rate and scale that is not compatible with selling off old coal stocks – particularly since coal mining was supposed to end over 8 months ago. We also have emails from the Merthyr Tydfil County Borough Council confirming that ongoing coal mining is occurring at Ffos-y-fran. One email seems to suggest that the mining company may even have lied to the Council by claiming it wasn’t coal mining when the Council asked.

So what needs to happen?

Merthyr Tydfil County Borough Council should issue a Temporary Stop Notice – an emergency enforcement option to be used in cases just like this. It almost instantly stops the defined activity for a period of up to 28 days. This gives the council the time it may need to assess and enforce long-term planning control, without further harm being done in the meantime. On the week of the 08th May 2023, the council received over 7,000 emails from our supporters demand a Temporary Stop Notice is issued to finally end illegal coal mining at Ffos-y-fan.

The Welsh Government needs to step in without further delay to protect its climate policies, given Merthyr Tydfil County Borough Council’s failure to take the expedient enforcement action described above,. If the Welsh Government exercises its power under S182 of the TCPA 1990, it will be implementing the local democratic decision made by elected councillors on 26th April, not overriding it. And immediate action is needed by the Welsh Government due to the contravention of its own policies and irreversible harm being caused on a daily basis. On the week of the 08th May 2023, the Welsh Government Ministers received over 3,000 emails from our supporters demanding that they use their powers to intervene and finally end illegal coal mining at Ffos-y-fan.

Published: 22/05/2023

Victory! We stopped Ffos-y-fran opencast from extending coal operations!

After 20 years of campaigning, last night (26/04/23) Merthyr Tydfil residents, Coal Action Network, Friends of the Earth Cymru, the Green Party, XR and other environmental campaigners finally collectively stopped Ffos-y-fran opencast coal with the Council’s refusal of permission to extend its climate chaos until 2024! This is an important step forward for the environmental movement across the UK.

Local people have suffered 16 years of dust, noise and a changing landscape, as 400 hectares of land got destroyed and 11 million tonnes of coal removed. The Welsh Government permitted what became the UK’s largest opencast coal mine to start in 2005 and, together with the local council, allowed it to keep mining after planning permission ran out in September 2022. An extension application to keep extracting coal until March 2024 was unanimously rejected by Merthyr Tydfil County Borough Council on the 26th April.

At the planning hearing, the Council’s Planning Officers recommended that the application be refused, as it does not comply with Welsh law on coal mining.

Over 1,400 letters of objection written by Coal Action Network’s supporters were highlighted in the planning hearing, showing the large national and international demand to keep all coal in the ground. This highlights that Councils are being watched when they decide fossil fuel project permissions and should make them more accountable.

Merthyr (South Wales) Ltd, the coal mining company, claimed that it was under no legal commitment to contribute to the restoration fund—which the council disagrees with; it failed to provide details of what proportion of coal used at Port Talbot came from Ffos-y-fran; it failed to pay dues to the council whilst mining without permission since Sept 2022. There is only a £15 million deposit in the restoration fund, when between £75m and £125m is required to put back the site

In the hearing, elected Councillors voiced serious concerns about the potential shortfall of at least £60 million to deliver the restoration long-promised to local residents, and the lack of enforcement action by the Council when the mining company simply kept mining after planning permission expired. They both need to be addressed urgently. We’ll be fighting for justice alongside local residents until it is delivered.

Over the years there has been wide and varied resistance to Ffos-y-fran opencast coal mine. A non-exhaustive list includes:

In January 2017, the United Nations special Rapporteur on toxics and human rights, Baskut Tuncak visited Merthyr Tydfil. At the time he said, “The first observation that came to mind was how incredibly close this community is to a massive open pit coalmine...I heard allegations of very high rates of childhood asthma and cancer clusters within the community. But despite those allegations I didn't hear any evidence of a strong intervention by the government to investigate or any strong reaction by the companies concerned to investigate themselves.". In the resulting report it said, “the Aarhus Convention’s Compliance Committee found that the UK was in breach of its obligations to ensure access to justice by in essence excluding the public from court procedures by prohibitively expensive cost requirements.”

In the planning hearing, the issue of the mine workers’ jobs was raised, but the Council made clear that the coal company should have been preparing workers for the end of coal mining on the site, as has been expected since 2011, and highlighted that workers were still required to restore the site in the coming years. Coal Action Network and others call on the company, with support from the Welsh Government to ensure a truly just transition for workers which could include them being invited onto the current Universal Basic Income pilot.

We are relieved that the Council saw sense and put an end to this climate trashing coal mine. There is work to be done to ensure the best possible restoration of the site, bringing the area back into public use. The Welsh Government and Merthyr Tydfil County Borough Council need to take urgent enforcement action to stop coaling and ensure that the restoration is paid for, in full by the mining company.

Published: 27. 04. 2023

Stop coal's climate toll - Radical history inspired protest

In the 1800s, poor people, in rural west and mid Wales rose up against the punitive toll system that was taxing their produce and destroyed the toll gates, in what is called the ‘Rebecca Riots’. In their footsteps, Coal Action Network and its supporters—modern day ‘Daughters of Rebecca’—are protesting the Welsh Government’s lack of concrete action against coal mine expansion. We are pushing the Welsh government to implement a comprehensive ban on coal mining, as Scotland passed in October 2022.

The original Rebecca Riots were a series of protests and direct action by tenant farmers against the payment of fees to use the roads. During the riots, men disguised as women attacked the tollgates. They called themselves ‘Rebecca and her daughters’, all answering to the name Rebecca for anonymity from prosecution.

Further, the Daughters of Rebecca are calling upon the Welsh Government to prevent the extension at Aberpergwm underground mine, near Glynneath, Neath Port Talbot, to stop its climate toll. Coal Action Network took both the Welsh Government and the Coal Authority to court in March 2023, challenging their permitting Aberpergwm to expand when it goes against Welsh policy and the urgent need to take action on climate change. A judge’s decision is awaited. If she decides that either the Welsh Government or the Coal Authority misjudged their powers the relevant public body will be asked to remake their decision, which could close Aberpergwm coal mine.

Rally to rule out expanding Ffos-y-fran opencast

Key information

Date: Wednesday 26 April 2023

Time: from 4:30pm (hearing starts at 5pm)

Location: Council Chambers, Civic Centre, Castle Street, Merthyr Tydfil, CF47 8AN

Bring: banners, signs, loud-hailers, or just yourself!

Background

Ffos-y-fran is a large opencast coal mine in Merthyr Tydfil, South Wales which has operated for over 15 years. On 06th September 2022, planning permission for the opencast coal mining came to an end… but the mining company continues mining an average of 1,000 tonnes of coal every day (emitting the equivalent CO2 to burning 1.5 million litres of petrol)! The local Council claims the mining company, Merthyr (South Wales) Ltd lied about stopping mining but still refuses to take any action to stop the illicit coal mining happening at Ffos-y-fran. This makes a mockery of local democracy, equality in law, and Welsh Government's climate commitments.

On Wednesday 26th April, Merthyr Tydfil County Borough Council will meet to decide whether to approve or reject the mining company's application to officially extend the coal mine until 31 March 2024. The Councillors must listen to local residents suffering noise and dust pollution for over a decade, and reject this expansion in the midst of our climate emergency. We all have a stake in this, so join us outside and ensure the Councillors can't ignore your opposition.

Published: 17/04/2023