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

Part II of the Coal Industry Act 1994 creates one legal instrument: the licence. An authorisation to conduct coal-mining operations is contained in that licence and is not a separate instrument. A licence granted before 1 April 2018 remains a pre-existing licence even where provisions authorising operations are postponed under section 27(3) pending conditions. The later satisfaction of those conditions does not create a new licence or require approval under section 26A.

In section 26A, the word it refers to the licence. The approval requirement therefore applies to licences that had not taken effect when section 26A came into force. Statutory context confirms the natural and ordinary meaning. Questions of retrospectivity and Convention rights need not be decided where ordinary interpretation resolves applicability.

Energybuild held a Coal Authority licence granted in 1996 and varied in 2013 for coal-mining operations at Aberpergwm. The licence postponed the operation of its authorisation until specified conditions were satisfied. Those conditions were addressed after section 26A of the Coal Industry Act 1994, inserted by the Wales Act 2017, came into force on 1 April 2018.

The Welsh Ministers decided that they had no approval function under section 26A. Steyn J dismissed Coal Action Network’s judicial review claim: [2023] EWHC 1194 (Admin). The appeal concerned whether section 26A applied to a licence granted before its commencement where the authorisation of operations became operative only after conditions were satisfied.

1. Appeal dismissed. The Court of Appeal upheld the dismissal of the judicial review claim, although for different reasons from Steyn J. Lady Justice Nicola Davies and the Senior President of Tribunals agreed with Lord Justice Lewis.
2. Part II of the Coal Industry Act 1994 provides a single legal instrument, the licence. The licence authorises the carrying out of coal-mining operations. The authorisation is part of, or contained in, the licence and does not constitute a separate legal instrument. Sections 27(1), 27(2)(b) and 27(3) show that the licence may describe, restrict or postpone the coming into force of provisions authorising operations. The licence itself takes effect when granted. If specified conditions are not satisfied, the licence may lapse under section 27(3)(b).
3. Section 26A(1) requires approval before a licence has effect. The pronoun it refers to the licence, not to the authorisation as a separate entity. The provision is not apt to apply where the licence had already taken effect before 1 April 2018, even though provisions authorising operations were postponed. The contextual approach to statutory interpretation was supported by the principles cited from R (O) v Secretary of State for the Home Department, R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3.
4. The 1996 licence, as varied in 2013, had taken effect before section 26A commenced. Its terms governed the satisfaction of the conditions and the giving of notice that they had been met. Neither the Act nor the licence required a variation to recognise that the conditions had been satisfied. The Welsh Ministers therefore had no approval function in relation to it.
5. The constitutional context of Welsh devolution and the importance of addressing climate change could not extend the natural meaning of section 26A. Government policy, correspondence, ministerial statements and Hansard were not legitimate aids on this issue. Since section 26A did not apply, the court declined to determine the alternative arguments concerning retrospectivity, Article 1 of the First Protocol and section 3 of the Human Rights Act 1998.

• Court of Appeal (Civil Division): appeal dismissed for different reasons from the lower court, [2024] EWCA Civ 168.
• High Court of Justice, Administrative Court in Wales: Steyn J dismissed the judicial review claim concerning the Welsh Ministers’ decision, [2023] EWHC 1194 (Admin).