Opposition to Coal Mine, Whitehaven, Cumbria

Richard Buxton Solicitors is instructed by South Lakes Action Against Climate Change, (SLACC) which opposes the proposed new underground coal mine near Whitehaven, Cumbria. Our work triggered the decision by the Secretary of State to “call in” the decision for inquiry and we represented SLACC as a formal party at the Inquiry.

Secretary of State Michael Gove issued a decision granting permission for the mine in December 2022; to read about the case challenging that decision, go here.

In 2017, West Cumbria Mining (WCM), a company promoting the proposed mine, made an application to Cumbria County Council to construct a new coal mine near Whitehaven, Cumbria. The decision was considered on two occasions by the County Council, but before a decision was issued, an amended application was made by WCM in April 2020 to address points raised by a separate challenge.

SLACC opposed the mine on a number of grounds including the significant greenhouse gas emissions likely to be generated by mining approximately 2.8 million tonnes of coal per year, the loss of biodiversity and potential harms to ancient woodland (primarily from the construction of an underground conveyor and rail loading facility to transport the coal from the site), and the impacts on local amenity, listed heritage assets, landscape, and the Coast to Coast footpath, which would have to be re-routed to accommodate the proposal. SLACC also was concerned about the negative economic impact of embedding this “stranded asset” in the community.

The Inquiry
At the inquiry, which commenced on 7 September 2021, and ran for 4 weeks, Richard Buxton Solicitors, instructing Estelle Dehon and Rowan Clapp, presented detailed expert evidence to support the case against the mine. Expert evidence was given by:

• Professor Sir Robert Watson
• Professor Paul Ekins OBE
• Professor Michael Grubb
• Professor Stuart Haszeldine OBE
• Professor Lars Nilsson
• Rebekah Diski MA, MSc (New Economics Foundation)
• Paul Bedwell, Dip TRP, MRTPI
• Dr Tony Martin, MLI MCIEEM

In (very brief) summary, SLACC’s evidence showed that the greenhouse gas emissions from the use of the coal produced by the mine would lead to 220 million tonnes of additional CO2 over the lifetime of the mine, that the Applicant’s case that the mine was “net zero” relied on an argument that ran counter to basic economic theory and also failed to address likely methane and other emissions from the mine which were omitted from its assessment, that there was little need for the coal in the UK or Europe based on technological advances occurring in the steel industry and emissions targets which would further reduce demand for coal-based steelmaking, that the local economic and employment benefits of the mine were overstated by the applicant, that there would be a loss of biodiversity and harm in particular to ancient woodlands crossed by the underground conveyor, and that other harms also weighed against the proposal, including harms to the landscape, to users of the Coast to Coast path, to neighbours’ amenity and to heritage assets.

Further submissions were made after the close of the in-person inquiry in relation to the draft planning conditions and draft “section 106” legal agreement by which certain aspects of the development are proposed to be secured. The Inquiry was formally closed by the Inspector on 1 December 2021, though parties made additional short legal submissions on the effect of the Court of Appeal’s new judgment in R(Finch) v Surrey County Council, on 4 March 2022 (the case relates to environmental impact assessment of emissions).

The Inspector will make a recommendation to the Secretary of State for Levelling Up, Housing and Communities who will then publish a decision on whether to grant or refuse permission for the mine.

Pre-inquiry
Richard Buxton Solicitors was first instructed by SLACC in late 2019 to advise and assist with planning objections to the mine. In April 2020, WCM submitted an amended application, which changed aspects of the proposal in terms of the coal to be produced by the mine and the treatment and processing of the coal.

In October 2020, the Cumbria County Council Development Control and Regulation Committee considered the amended application and resolved to grant planning permission. Also in October 2020, SLACC wrote to the Secretary of State for Housing, Communities and Local Government asking him to “call in” the application to a public inquiry as the issues raised by the proposal were of national importance. The Secretary of State declined the request on 6 January 2021.

On 7 January 2021, we wrote to Cumbria County Council highlighting new information in the form of the UK Climate Change Committee’s 6th Carbon Budget. We noted that the annual operational emissions of the mine would exceed the Climate Change Committee 6th Carbon Budget estimates of the total emissions from the coal mining subsector upon commencing operations. We also noted that the Climate Change Committee projections ran counter to advice provided to the Councillors about the need for coal to 2049 (the period during which permission was proposed to be granted). We noted that this new information required referral back to the committee for reconsideration, given that the advice given to committee ran contrary to that of the UK’s government expert advisors, and that this new information clearly might affect the decision.

On 14 January 2021, we also wrote to the Secretary of State highlighting new information in the 6th Carbon Budget and asking that he reconsider his decision not to call in the mine to a public inquiry.

Extraordinarily, on 29 January, 2021, Lord Deben, the Chair of the UK Climate Change Committee, wrote to the Secretary of State highlighting the national importance of the mine and noting that the mine would have an “appreciable impact on the UK’s legally binding carbon budgets”, and echoing the point made by us two weeks earlier in noting that the mine would exceed “the level of annual emissions we have projected from all open UK coal mines to 2050.”

The Secretary of State responded only to indicate that the decision was “not being reconsidered.” However, on 9 February 2021, in response to our letter, the County Council announced that it would refer the application back to committee members for reconsideration after the new information provided.

On 25 February 2021, we sent a “pre-action” letter to the Secretary of State proposing a legal challenge to the unlawful refusal to consider whether to exercise his powers to call in the decision in light of the new information, his failure to take into account material considerations arising from the CCC’s Sixth Carbon Budget and his failure to give reasons for departing from his call-in policy. Under the “pre-action protocol,” a response to this letter was due on 11 March 2021. On the evening of 11 March, the Secretary of State issued a decision to call in the mine for a public inquiry and sent a short letter saying that the proposed challenge was now academic in light of his decision to call in the application.