In January 2023, the two environmental organisations Friends of the Earth (FoE) and South Lakeland Action On Climate Change (SLACC) filed public law challenges to the UK Government’s decision to grant planning permission for a new coking coal mine in the UK.
The decision to grant planning permission was made in December 2022 by the Secretary of State (SoS) for Levelling Up, Housing and Communities, on the recommendation of a planning inspector after a planning inquiry held in 2021.
FoE challenged the decision as unlawful on the following grounds:
- The SoS’ conclusion that the mine would be a “net-zero” mine for the purpose of reaching the UK’s Sixth Carbon Budget (covering the period of 2033-37, and as established under the UK’s Climate Change Act 2008) was unlawful. International carbon offset credits, which the mining company undertook to buy to offset the mine’s residual emissions, do not count towards the UK’s carbon budgets.
- The SoS’ failed to lawfully address the international impact of this decision, despite the evidence given on this issue by highly qualified people, like the former chair of the IPCC.
- The SoS erred in his approach to the extent to which the coal would “substitute” for other coal in the global market or be “additional” to it, resulting in the unlawful conclusion that there would be no net emissions increase because of the mine.
- FoE also reserved the right to argue a point on the SoS’ approach to downstream emissions, depending on the UK Supreme Court’s decision in R (Finch) v Surrey County Council & ors, which was heard in June 2023.
SLACC challenged the decision as unlawful on the following grounds:
- The SoS failed to deal with the principal issue of whether or not there would be perfect substitution, which would determine the extent of the climate impact of the mine.
- The SoS failed to deal with the principal issue of the international impact of granting planning consent.
- The SoS incorrectly determined whether downstream emissions are indirect significant environmental effects of the mine.
- The SoS applied a different threshold to the opposing parties’ evidence and arguments at the planning inquiry, and imposed the unlawful burden on the claimant of disproving the mine company’s case.
In April 2023 the High Court initially refused both claimants permission to proceed to a full hearing. The claimants exercised their right for that decision to be reconsidered.
In May 2023, in the days leading up to the permission hearing, the High Court ordered a ‘rolled-up’ hearing of the two challenges. This means the applications for permission will be considered in court with the substantive hearing to follow immediately if permission is granted. At the rolled-up hearing, the judge is likely to hear argument on permission and the substance together, and give a single judgment. A three-day hearing was then set for October 2023.
However in July 2023 the High Court vacated the October hearing and stayed the challenges pending the judgment of the Supreme Court in R(on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others (UKSC 2022/0064).
In October 2023 the High Court heard and rejected a disclosure application by Friends of the Earth. The document sought was the advice received by the SoS, from his officials, on whether to grant or refuse planning permission for the mine. In February 2024 the Court of Appeal refused Friends of the Earth permission to appeal against this disclosure decision.
The rolled-up hearing has not been fixed yet, given the Supreme Court is yet to give judgment in the Finch appeal. The hearing is expected to take place at some stage during 2024.
Case Documents:
Filing Date | Type | File | Summary |
---|---|---|---|
01/01/2023 | Complaint | Download | SLACC “Statement of Facts and Grounds” 13 January 2023 |
04/08/2023 | Order | Download | ORDER by Sir Ross Cranston sitting as a High Court judge refusing the application for permission to apply for planning statutory review |
04/12/2023 | Press Release | Download | Friends of the Earth and SLACC Press Release |
01/16/2023 | Press Release | Download | Friends of the Earth press release re legal challenge filed over Cumbrian coal mine |
04/26/2023 | Not Available | Download | Legal briefing |
05/18/2023 | Order | Download | Order for rolled-up hearing |
07/28/2023 | Order | Download | Order |
10/17/2023 | Judgment | Download | Judgment issued by England and Wales High Court (King's Bench Division) |