Coal Action Network, R (on the application of) v Welsh Ministers & Anor

Section 26A of the Coal Industry Act 1994 applies to an authorisation contained in a Part II licence which has been postponed under section 27(3)(a), but not where the authorisation was already in force before section 26A commenced. The presumption against retrospectivity may prevent the provision applying to a pre-existing postponed authorisation where doing so would substantially impair valuable rights without compensation or appeal rights. The Coal Authority’s task in determining whether licence conditions have been satisfied is limited by those conditions. It cannot use that determination to revisit the prior in-principle decision to authorise mining. Matters unrelated to satisfaction of the conditions, including climate impacts and ministerial policy, were not material to that task.

Coal Action Network sought judicial review of decisions concerning Energybuild Mining Ltd’s application to deconditionalise part of an underground coal-mining licence at Aberpergwm.

The Welsh Ministers decided that section 26A of the Coal Industry Act 1994 gave them no power to approve or refuse the authorisation because the licence had been granted before section 26A came into force. The Coal Authority approved the application after concluding that the licence conditions had been fulfilled. The issues were whether section 26A applied and whether the Coal Authority had unlawfully fettered its discretion or failed to consider material matters.

1. Ground 1 dismissed. Section 26A had to be construed by reference to the natural and ordinary meaning of the statutory language, read in the context and purpose of the Coal Industry Act 1994 as amended. The terms “licence” and “authorisation” conveyed different meanings. Section 26A concerned approval of the authorisation contained in a Part II licence.
2. An authorisation postponed under section 27(3)(a) was an authorisation for section 26A purposes. Unless the Welsh Ministers approved it, the authorisation had no effect. However, section 26A did not apply to an authorisation, including a postponed authorisation, held before 1 April 2018. Applying it to such a licence would have retrospective force by imposing a new disability on existing valuable rights.
3. The presumption against retrospectivity was strengthened by the absence of any compensation or appeal scheme. Although the language of section 26A was reasonably open to both interpretations, fairness made it highly unlikely that Parliament intended the provision to impair the value of pre-existing licences in this way. The transitional provision in Schedule 7 to the Wales Act 2017 also protected authorisations already in force.
4. Ground 2 dismissed. The Coal Authority’s task was to determine whether the conditions precedent in the licence had been fulfilled in its reasonable opinion. The power to make that determination was implicit in section 28(1), read with sections 27(3) and 28(7). The conditions framed the subsequent decision.
5. The Coal Authority could not treat the application as a fresh opportunity to decide whether coal-mining operations should be authorised in principle. Its broad licensing powers did not enlarge its powers when determining compliance with existing conditions. The Welsh Government’s coal policy, climate-change effects and their impact on Welsh climate targets were not material to that limited task, and were not obviously material considerations requiring express consideration.
6. The claim was dismissed on both grounds.