Cumbria County Council Put On Notice

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Dear Friends,

Thanks to so many of you who supported our call out for crowd funding way back in November 2017. Only With your help did we secure the advice of top Lawyers,  Leigh Day.

Leigh Day have on our instruction written an excellent letter to Cumbria County Council putting them *on notice* that their approval of the first deep coal mine in the UK in 30 years puts the Council at serious risk of legal challenge.

The downside to this is that we now have no funds left for legal challenge and we are exploring the possibility of a brave soul stepping up who is eligible for legal aid.

Below is a press release sent out to all press (the press most notably the national press have so far abandoned any attempt at journalistic honesty in reporting on this coal mine and our battle to stop it)

PRESS NOTICE

CUMBRIA COUNTY COUNCIL ‘PUT ON NOTICE’ OVER THEIR APPROVAL OF THE FIRST DEEP COAL MINE IN THE UK IN 30 YEARS

Campaigners battling to stop the first deep coal mine in the UK in 30 years have issued a warning to Cumbria County Council that their unanimous vote of approval on 19th March 2019 could be the focus of a legal challenge.

The letter issued by top environmental lawyers Leigh Day acting on behalf of Keep Cumbrian Coal in the Hole puts the Council on notice that there is a *serious risk of legal challenge.*

In March Cumbria County Council’s Development Control and Regulation Committee resolved that planning permission should be granted for a major new underground metallurgical coal mine on the former Marchon Chemical Works site in Whitehaven, Cumbria. Finalised planning permission is not actually expected to be granted for at least a few months as West Cumbria Mining and others need to enter into a special 106 agreement for example with surrounding landowners in advance of that final permission being granted. KCCH was also informed, on 13 June 2019, that the Secretary of State is still considering whether to call-in the application for his own determination and that he does not expect to make a decision on this before July.

Keep Cumbrian Coal in the Hole is a Radiation Free Lakeland campaign, RaFL is a small civil society group whose primary focus is on nuclear safety, the mine would extend to 5 miles from Sellafield. KCCH was one of the many objectors to the planning application focussing its objections on environmental grounds.

The letter sent to Cumbria County Council on 20th June from Leigh Day informs the County Council of a number of flaws and omissions in their planning assessment and invites the Committee to formally re-consider its resolution to grant permission.

The issues and legal flaws are listed and described in detail in the letter. They include Cumbria County Council’s failures to consider:

GHG emissions of the mining operations
The need for, and GHG impacts of, Middlings Coal
GHG impacts of an increase in coal production.
4. Failure to consider and apply Policy ENV2 of Copeland’s Local Plan (2013 to 2028)

The letter states in conclusion:

*For the reasons given above, KCCH formally requests that the Committee reconsiders its resolution to grant planning permission for the Whitehaven Coalmine development and asks that the Committee has full regard to each of the considerations listed above when it does so. The Council’s officers are asked to facilitate that process. In the event that the Council refuses to reconsider its resolution to grant, KCCH requests that the Council provide its reasons for doing so.*

Marianne Birkby from KCCH says *we are delighted that Leigh Day have agreed to represent campaigners battling to stop this coal mine which is disastrous on so many different levels and we hope that Cumbria County Council take this opportunity rethink their decision which will impact on so many generations to come*

Anna Dews, solicitor at Leigh Day, said: *We are in the midst of a global climate crisis and our client is strongly of the view that Cumbria Country Council must now rethink its resolution to grant planning permission for the Whitehaven Coalmine. In doing so it will have to reconcile the fact that coal-fired power was the biggest single contributor to the rise of emissions in 2018 with the need to urgently tackle the climate crisis in the local area.*

Rowan Smith, solicitor at Leigh Day, added *Since the Committee resolved to grant planning permission, British Steel (one of the proposed main recipients of the coal) went into compulsory liquidation and the UK government laid legislation in parliament for a net zero Climate Change Act target. Our client KCCH strongly believes that these developments are very persuasive reasons for the Committee to rethink its decision. If it does not, then KCCH will be prepared to take legal action.

ENDS

Main Text of the Letter to Cumbria County Council- references available

Introduction

As you are aware, on 19 March 2019, Cumbria County Council’s Development Control and Regulation Committee (the Council; the Committee) resolved that planning permission should be granted for a major new underground metallurgical coal mine on the *former Marchon* site in Whitehaven, Cumbria subject to various matters including the execution of a section 106 agreement. This permission, if and when actually granted (presumably by an officer acting under delegated powers), will allow for 50 years’ of continuous coal-mining operations. At full capacity, the mine will produce 2,430,000 tonnes per annum of *coking coal* and 350,000 tonnes per annum of *middlings coal*(otherwise known as *industrial coal*).

KCCH was one of the many objectors to the planning application, focussing its objections on environmental grounds. KCCH noted the lack of any carbon footprint assessment of the emissions from the mining activities and it doubted the applicant’s (West Cumbria Mining) allegations of expected CO2 savings from import substitution of coking coal.

KCCH does not expect planning permission actually to be granted for at least a few months from the date of this letter, having regard to the need for WCM and others to enter into a significant section 106 agreement in advance of any permission being granted. KCCH was also informed, on 13 June 2019, that the Secretary of State is still considering whether to call-in the application for his own determination and that he does not expect to make a decision on this before July.

Consequently, it may be some time before a grant of planning permission could be made. KCCH nonetheless seeks – by way of this letter – to inform the County Council of a number of flaws and omissions in the planning assessment underlying the Committee’s resolution to grant. We consider that these flaws also represent a number of grounds for a legal challenge, should any subsequent decision to grant planning permission be based on the same reasoning/assessment. Through this letter we, therefore, intend to put the Council on notice that there is a serious risk of legal challenge, should any such planning permission be granted.

Furthermore, we invite the Committee to formally re-consider its resolution to grant permission (and by this letter ask officers to refer the matter back to the Committee for that purpose), taking into account the substance of each of the matters raised below. Each of the matters is plainly a material consideration which could, and we believe would, lead the Committee to reverse its previous resolution.

With that in mind we note that British Steel went into compulsory liquidation in May, putting 5,000 jobs at risk and prompting a Parliamentary inquiry which will consider the serious challenges being faced by the UK steel sector. We consider that this recent news fundamentally undermines the *need* case for *coking coal* in the UK market. As a result, it materially impacts on the Council’s assessment that the “supply of indigenous metallurgical coal to support the UK steel industry in place of imported coal is positive and should be afforded considerable weight” and its conclusion that there will be a *likely need* for metallurgical coal for the steel industry which has the potential to result in *national benefits* of *considerable weight* (officer’s report at 6.514).

For this reason alone, we request that the Committee formally reconsider its resolution to grant. There has been a clear change to the factual circumstances underlying the resolution made on 19 March and it cannot be known whether the Committee would reach the same conclusion again in light of these new facts.

Issues and legal flaws

Failure to consider GHG emissions of the mining operations

There can be no doubt that the mine will emit green-house gases (GHG) through its production processes. This was accepted by officers in the report to the Committee (OR) at 6.44. KCCH can see no evidence that the applicant provided any estimate for the GHG emissions arising from the mining operations themselves. It appears that the only assessment of site emissions is in Chapter 15 of the Environmental Impact Assessment, but this concerned local air quality impacts and dust emissions.

The development’s impact on climate change was central to the planning balance. The Committee was required to consider this under both national and local policy. In carrying out the balancing act at *stage 1* of the NPPF paragraph 211 test (and the policy test in DC13 of the Cumbria Minerals and Waste Local Plan), the emissions from mining operations were afforded *moderate weight”*(officer report at 6.503). This is the same broad category of weight (“moderate”) afforded to the potential benefits alleged to arise through GHG savings from import substitution of coking coal (at 6.502). However, whilst a crude estimate (5.3 million tonnes of CO2) was provided for the alleged GHG savings, there is no equivalent estimate for the expected emissions from the operations themselves.

It follows that the mine’s GHG emissions was a material consideration that was left out of account. Furthermore, the Committee could not rationally balance (as it needed to do) (i) the alleged GHG savings against (ii) the new GHG emissions, without comparable (and robust) information on each.

Failure to consider the need for, and GHG impacts of, Middlings Coal

The production of middlings coal will constitute up to 15% of total output. This is roughly 364,000 tonnes per annum and is a significant amount of production. It correlates, for example, to the 360,000 tonnes per annum of coking coal that will be supplied to UK steel plants.

In stark contrast to the Committee’s assessment of the coking coal to be produced from the mine, the Committee has failed to lawfully consider the need for the middlings coal – both in terms of the level of demand for it and where that demand will arise.

The OR states, at 6.70 that:

…since government policy is to move away from coal as an energy source, the likely market for this product will be industrial processes such as cement manufacture. Since the middlings coal would otherwise be disposed of with the waste rock material, I consider that if markets are available for this product for non-energy uses, this is potentially a beneficial use of a product that would otherwise be disposed of as waste. (emphasis added)

There is no further assessment of whether such markets are available, nor where they are located (whether in the UK, Europe or elsewhere in the world). There is no consideration of the likelihood of import substitution for middlings coal, or the CO2 emissions associated with transporting it to its end destination. Moreover, the Committee failed to consider whether – if permission were to be refused – any *need* for middlings coal would be likely to be met by imported industrial coal or lower carbon-emitting sources.

In short, the Committee failed to have regard to the carbon footprint of the middlings coal and its potential GHG emissions impacts. This failing fundamentally undermined any assessment of the development’s overall impact on climate change.

It was irrational for the Committee to consider only the potential carbon footprint of the coking coal and not all coal to be produced. What is more, the Council has suggested a 15% restriction on the production of middlings coal, without providing any reasons why this is a suitable limit (see the officer’s report at 6.72-6.74).

Failure to consider the GHG impacts of an increase in coal production

The UK Parliament passed a motion to declare a climate emergency on 1 May 2019. As the High Court recently stated, the increase in global temperatures is *potentially catastrophic* (R (Spurrier and others) v Secretary of State for Transport [2019] EWHC 1070 (Admin) at [559]). In this context, it was imperative on the Committee to scrutinise any potential for an increase in GHG impacts arising from increased coal production at Whitehaven. It failed to do so.

Any addition to the global stock of fossil fuels will de facto increase the likelihood of GHG emissions. If the Whitehaven Coalmine were to be permitted, a very substantial amount of coal will be added to the global stock over a very significant amount of time (50 years). This will clearly increase GHG emissions and is a highly material consideration that the Council should have had regard to.

This is notwithstanding any (non-binding) intentions of the applicant that the coal to be produced will not be used for power-generation industries (KCCH have particular concerns that there is little guarantee on how the middlings coal will eventually be used and nothing to prevent it from being used in power-generation industries).

Exports

It is also notwithstanding any (again non-binding) intentions of the applicant that some of the coal to be produced will substitute for imports that would otherwise have had to travel further (with associated transport-related CO2 emissions). In addition to there being no assessment of import-substitution in relation to middlings coal (see point 2 above), KCCH highlights that the vast majority of coking coal will be exported (only 360,000 tonnes is destined for the UK steel plants at Scunthorpe and Port Talbot).

Nothing in the proposed planning permission restricts these exports to Europe (or Western Europe) and it remains entirely possible for the applicant to export the coal further afield (particularly as the permission will remain in place for 50 years, over which time the markets for both coking coal and middlings coal will continue to change). If the coal is exported further afield, the alleged GHG savings from import substitution could easily be cancelled out, or outweighed by additional transport emissions associated with exported coal from the mine to non-European destinations.

The Committee should have considered these possibilities but failed to do so.

Worldwide prices

Finally, the increase in coal production could lead to a depreciation in the worldwide price of coal which could, in turn, lead to an increase in demand for coal. The OR noted that this concern had been raised (at 6.45) but concluded that it was an issue *far broader than can be addressed or influenced through this planning application* (at 6.50). That is not a sustainable answer.

This conflicts with the approach taken by the Secretary of State in his decision on the Highthorn open cast coal mining development at Druridge Bay in south-east Northumberland. In assessing this application, the Inspector did consider whether the additional production of coal could affect international prices, albeit he concluded that it could not (at C114 of the report) and the Secretary of State did not disagree with this position (para 34 of the letter). Notably, the Highthorn mine proposes to extract significantly less coal than at Whitehaven (the total amount of coal to be extracted will be a maximum of 3 million tonnes) and for a much shorter period (5 years).

Climate Change Act 2008

The failings noted at points 1-3 above also prevented the Committee from fully appreciating, and having regard to, the Development’s contribution to the UK’s CO2 emissions, in a context where the Government has set legally binding national targets to cut emissions by 80% of 1990 levels by 2050 through the Climate Change Act 2008 (in order to comply with the UK’s international commitments to keep the global temperature rise to 2 degrees above pre-industrial levels in 2050).

What is more, on 12 June 2019 legislation was laid before Parliament designed to implement the Government’s announcement that the UK will eradicate its net contribution to climate change by 2050. The legislation will amend the Climate Change Act 2008 to achieve this and it is expected to greatly enhance the duties imposed by the Act. We consider this recent announcement to be another material change in circumstances, since the resolution to grant, mandating reconsideration by the Committee.

Failure to consider and apply ENV2

Policy ENV2 of Copeland’s Local Plan (2013-2028) is not listed as a relevant policy for the Development in the OR. However, it states that

To reinforce the Coastal Zone’s assets and opportunities the Council will
…
E Protect the intrinsic qualities of the St Bees Head Heritage Coast in terms of development proposals within or affecting views from the designation. At the same time encourage schemes which assist appropriate access to and interpretation of the Heritage Coast area.

The Development clearly impacts on the St Bees Heritage Coast area. Officers advised that it would have a *moderate adverse impact* on the heritage sensitivity of St. Bees Heritage Coast (at 6.375 and 6.383).

However, there appears to have been no consideration whatsoever of development plan policy ENV2 and whether the *intrinsic qualities* of the St Bees Heritage Coast could be protected. As a result, the Committee has unlawfully failed to have regard to a relevant policy in the development plan.

Conclusion

For the reasons given above, KCCH formally requests that the Committee reconsiders its resolution to grant planning permission for the Whitehaven Coalmine development and asks that the Committee has full regard to each of the considerations listed above when it does so. The Council’s officers are asked to facilitate that process.

In the event that the Council refuses to reconsider its resolution to grant, KCCH requests that the Council provide its reasons for doing so.

Please send all future correspondence in this matter to Rowan Smith and Anna Dews, solicitors with conduct of this matter, using the details in our letterhead.
Yours faithfully,
Leigh Day

_________________________

Thank you for signing the petition Call in the Decision and Keep Cumbrian Coal in the Hole (its too near Sellafield), can you help spread the word by forwarding the link below to your friends?

https://you.38degrees.org.uk/petitions/keep-cumbrian-coal-in-the-hole-its-too-near-sellafield

MANY Thanks

Marianne Birkby