Christian J Howells in Ffos-y-fran mine challenge

December 05 2023

Christian J Howells, instructed by Natalie Pizzardi of the Government Legal Department, successfully represented the Welsh Ministers in a claim brought by Coal Action Network, funded by the Good Law Project, against Merthyr Tydfil County Borough Council and the Welsh Ministers in relation to enforcement action in respect of ongoing coal extraction at Ffos-y-fran opencast mine. 

Prior to the expiry of planning permission for coal extraction, the operator of the mine applied for an extension, which was refused by the Council, and the Council issued an enforcement notice.  The operator appealed the enforcement notice to Planning and Environment Decisions Wales. 

In a claim issued before the appeal was filed, Coal Action Network argued that the Council should use its enforcement powers in section 183 of the Town and Country Planning Act 1990 to issue a stop notice relating to coal extraction.  Coal Action Network also argued that the Welsh Ministers should step in and use their reserve powers in section 185 to issue a stop notice if the Council did not do so in a reasonable period of time. 

In defending the claim, the Council argued that it was carrying out further enquiries relating to the safety of the site and the necessity of coal extraction as part of the remediation of the site (an argument raised by the operator in its appeal against the refusal of an extension to the expired planning permission).  It was not for the Claimant to dictate the deadlines by which any action should be taken by the Council who were actively addressing their minds to the issue.  The Welsh Ministers argued that in challenges of this nature to the exercise of enforcement powers, local planning authorities are given a wide discretion by the courts.  Thus, the exercise of reserve powers by the Welsh Ministers was even less likely to be interfered with by the court and in any event, the Welsh Ministers took the view that the enquiries being made by the Council were reasonable ones and that it was reasonable to await the outcome of those enquiries before the Welsh Ministers made a decision on whether or not to use their reserve enforcement powers. 

Coal Action Network sought urgent interim relief, relying on the ongoing carbon emissions.  Eyre J refused the urgent application because it was disproportionate given the history of the proceedings, and Coal Action Network withdrew the application for interim relief following the announcement by the operator that it would cease coal extraction at the site by the end of November 2023.  Following an agreement being reached between the Council and the operator, Coal Action Network withdrew the claim altogether. 

Press reporting of the claim can be found here