No appeal over Cumbria coal mine judgment

The company behind plans to build a new coal mine in Cumbria has not lodged an appeal against last month’s High Court decision to strike down planning permission for the controversial development.

Friends of the Earth has confirmed this morning (14 October) that West Cumbria Mining has not filed any papers with the court, missing the deadline to appeal against the ruling [1].

Planning permission for the mine was quashed by the High Court on 13 September [2] following legal challenges by Friends of the Earth and South Lakes Action on Climate Change (SLACC). The judge found in Friends of the Earth’s favour on all four grounds of its challenge, and in SLACC’s favour in all but one of theirs.

Plans for the mine were dealt a further blow last month (26 September) when the Coal Authority refused to grant coal mining licences for the development [3]. In its damning report [4], the Coal Authority identifies many shortcomings in WCM’s plans, but two in particular – about subsidence and about the financial viability - were “fundamental” to its refusal to grant coal licences.

Secretary of State for Housing, Communities and Local Government, Angela Rayner. will now have to reconsider the original planning application by WCM – unless the company decides to abandon its plans by withdrawing it.

Friends of the Earth is urging the government to ensure that West Cumbria, and areas like it, are at the forefront of the transition to a green economy to get the jobs and investment that is urgently required.

Friends of the Earth energy campaigner, Tony Bosworth, said:

“It’s little surprise that West Cumbria Mining has not appealed the judgment. The High Court found in our favour on four separate grounds, and each of these would have had to be overturned to change the outcome.

“Last month’s decision by the Coal Authority to refuse coal mining licences for the proposed development, underlines the fact that this mine is effectively dead in the water.

“WCM must now accept the inevitable and walk away from this development. If they don’t, Angela Rayner should bang the final nail into the coffin of this destructive and unnecessary mine by refusing planning permission.

“The government must now develop an ambitious plan to accelerate the transition to a zero-carbon future, with top priority given to areas like West Cumbria to ensure they get the jobs, hope and prosperity they so urgently need.

“With the closure of the UK’s final remaining coal-fired power station at the end of last month, coal is fast becoming part of our heritage, not of our future.”

ENDS

Notes:

1. West Cumbria Mining Ltd had until 4 October to file papers at the Court of Appeal, and up to a further week to tell the other parties to the litigation about any appeal application. However, nothing has been served on Friends of the Earth, and on 14 October staff at the Court of Appeal confirmed they have no record of any appeal on their system. Friends of the Earth's external lawyers have asked WCM's lawyers directly, on two occasions, whether their client is pursuing an appeal. The requests have gone unanswered.
    
2. Planning permission for Whitehaven mine ruled unlawful: https://friendsoftheearth.uk/climate/planning-permission-whitehaven-mine-ruled-unlawful 
    
3. The Coal Authority is a non-departmental public body sponsored by the Department for Energy Security and Net Zero. One of its functions is to decide whether to award licences to companies seeking to mine coal. It looks at whether a proposed mine can be operated effectively and with sufficient financial guarantees. 2. Coal Authority’s refusal to grant underground coal mining licence: https://www.gov.uk/government/publications/determination-of-woodhouse-colliery-licence-applications 
    
4. In its damning report, the Coal Authority identifies many shortcomings in WCM’s plans, but two in particular – about subsidence and about the financial viability - were “fundamental” to its refusal to grant coaling licences. This follows the High Court’s heavy criticism of WCM’s claims that the mine’s climate impacts would be “net zero”, which the judge concluded was legally flawed, and based on “muddled”, “inconsistent” and “absurd” reasoning. This mine was anything but world leading.

On subsidence, the Coal Authority concluded that “it appears that subsidence damage may be caused” to land and property, both on and offshore (report, paragraph 166.2). There was a gap in the analysis caused by WCM’s failure to be transparent with the regulator about the data underpinning its own assessments, which were inadequate (paragraphs 83 and 166.2). The Coal Authority’s experts also did their own modelling from the data available, and there was a “significant disparity” between what they found, and WCM’s conclusions (paragraphs 150.1 and 152). This meant the Coal Authority could not be confident about the scale of the potential subsidence and could not in turn assess risks of coastal erosion and earthquakes (paragraph 150).

On whether the mine would be viable, the Coal Authority concluded “the overall financial prospects for this Project are unacceptable” (paragraph 146). WCM’s plans depended on extracting a minimum tonnage of coal. But there was “significant risk and insufficient evidence” to support WCM’s claims (paragraph 155). Based on the information provided by WCM and the Authority’s own experts, the Coal Authority concluded that WCM’s financial plans “do not demonstrate that the Project is financially viable” (paragraph 156). The “significant uncertainties” that led to this conclusion included WCM’s working methods, the subsidence risk, the quality of the coal available, the geological conditions, the market for the coal produced, and the level of coal that exists and will be able to be extracted (paragraph 159). This links to the notice of the decision, which was published on 27 September, and the associated report explaining the reasons for the decision, which was published on 2 October.

Friends of the Earth was represented in the legal challenge by barristers Paul Brown KC, Alex Shattock (both of Landmark Chambers) and Toby Fisher (Matrix Chambers), and by Rowan Smith and Julia Eriksen at the law firm Leigh Day. The in-house lawyers at Friends of the Earth are Niall Toru and Katie de Kauwe. SLACC is represented by barristers Estelle Dehon KC and Rowan Clapp, of Cornerstone Barristers, and by Matthew McFeeley and Holly Law at Richard Buxton Solicitors.