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:
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?
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.
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 [link] to demand the Welsh Government commits to delivering:
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.
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.
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.
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.
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.
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).
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.
See our Statement of Facts and Grounds (PDF) summarised below -
Coal Action Network is seeking to have judicially reviewed:
The grounds of claim are:
Coal Action Network is seeking a hearing on the first available date after 20 August 2023 to determine the following remedies:
After that, we’ll be campaigning for:
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.
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
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
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.
“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…”
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.
“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.
THE LEGAL CONTEXT
Wellbeing of Future Generations
Planning permission and EIA
“(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) 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) 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.”
“[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.”
“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
“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.”
“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.”
“ Maguire J referred to paragraph  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.
 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.
 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.”
THE POLICY CONTEXT
Development Management Policy
“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.”
“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
“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.”
“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.”
The unauthorised development is likely to be EIA development
The Council’s failure to consider enforcement action prior to its decision on planning permission was arguably unlawful
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.
The Council’s failure to serve a stop notice is arguably unlawful
“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.”
The Welsh Ministers failure to consider issuing an enforcement notice before the Council took its own decision was arguably unlawful
“[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”.
The Welsh Ministers must urgently consult with the Council and consider, independently, whether to serve a stop notice.
21 June 2023
JAMES MAURICI KC
 For the references and calculations behind these figures, see fns 7 – 11 below.
 See R. (Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions  2 A.C. 29569 per Lord Hoffmann at  “[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.”
 Application P/22/0237
 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.
 Robert Carnwath QC, Enforcing Planning Control, HMSO February 1989.
 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.
 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.
 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.
 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.
 See the Institute of Environmental Management & Assessment (IEMA) Guide: Assessing Greenhouse Gas Emissions and Evaluating their Significance, Second Edition, February 2022.
 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.
 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.
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.
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.
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.
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.
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.
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.
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.
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
Today (25th April) people dressed as Rebecca Rioters protested against the Welsh Government’s failure to deliver a complete ban on coal mining on the steps of the Senedd (Welsh Parliament). The Rebecca Riots took place between 1839 and 1842 with the destruction of the toll gates which taxed rural people’s produce. The modern ‘Daughters of Rebecca’ dressed in 1800’s costume and demanded Members of the Senedd take urgent action to end coal mining and end the climate toll caused by coal mining and consumption.
Tomorrow (26th April) Merthyr Tydfil County Borough Council planning committee will decide whether to allow Ffos-y-fran opencast coal mine to continue mining coal until 31st March 2024 before refilling the void they’ve created. The Planning Officer has recommended that the application is refused, as it is not in line with Welsh Governmental policy on coal.
Rebecca from Merthyr Tydfil said, “We live opposite the massive Ffos-y-fran opencast coal mine which, despite years of valiant community resistance, was forced upon us in 2007.”
Residents of Merthyr Tydfil have had to suffer its impacts for 15 years of our lives, but not suffered in silence - we've fought it tooth and nail for all those years to try and manage its excesses. We were sickened to have to endure another 8 months of them mining coal illegally, and now the threat of even longer! No more; enough is enough!”
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.
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!
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.
In September 2022, Ffos-y-fran opencast coal mine's 15-year planning permission ran out and the coal mine was due to close and restoration begin. However, Merthyr (South Wales) Ltd applied for a S73 time extension to mine coal at the site for a 9 months, with an intention to submit a further application for a 3-year expansion.
But this climate calamity can't go ahead! Today, Thursday 12th January, Chris and Alyson, who live close to the Ffos-y-fran coal mine, delivered our petition of over 20,000 signatures to the Welsh Government's The Planning and Environment Decisions Wales. The petition demands that the Welsh Government:
06 September 2022 - June 06 2023
Coal sold: approximately 300,000 (company-reported volumes based on actual and extrapolated official Coal Authority statistics)
CO2 from coal use: almost 1 million tonnes of CO2 (2022 BEIS Conversion Factors)
Methane from the mine itself: 2,077 tonnes (Global Energy Monitor)
CO2e from the mine itself: 931,000 tonnes in 2021 (reported by the company on p4 (7) for machinery, electricity, and gas combustion)
Coal operator: Merthyr (South Wales) Ltd – formerly Miller Argent Holdings Limited, subsidiary of Merthyr Holdings Limited – which is owned by Gwent Investments Limited
Parent company: Gwent Holdings Limited, owned by Mrs J H Lewis
Type: Thermal coal, some of which is ‘upgraded’ to be sold to steelworks
Mining method: Opencast
Claimed destination: steelworks, domestic heating, cement production etc.
Local Planning Authority: Merthyr Tydfil County Borough Council
Address: Ffos-y-fran Land Reclamation Scheme, East Of Merthyr Tydfil CF48 4AE
Time: 15 years originally, then approaching 9 months in coal mining outside of planning control...and counting.
Published: 17/08/2022 Updated: 30/03/2023