In 1996 the authority issued a licence to the coal mine operator under Part II of the Coal Industry Act 1994 authorising certain underground coal mining operations. In respect of part of the site, the authorisation was conditional only and its effect was suspended, pursuant to section 27(3)(a), until certain conditions precedent had been discharged. In 2020 the operator applied to the authority for the conditional licence to be converted to a full operational licence. The authority was minded to grant the application but referred it to the Welsh Ministers in light of section 26A of the 1994 Act, as inserted by section 67 of the Wales Act 2017, which provided that a licence that authorised coal mining operations in relation to coal in Wales would have effect only if the ministers notified the authority that they approved the authorisation. The ministers took the view that section 26A applied only to new or extended licences (such as where the degree of authorisation for mining operations changed to allow new coal extraction) granted after that section came into effect and was not engaged by the operator’s application, which sought to give effect to an already existing authorisation granted in 1996. They accordingly declined to make a determination on whether the authorisation ought to be approved. The operator sought judicial review challenging the ministers’ decision and further contending that, if and to the extent that the determination was for the authority to make, it had erred in law by confined its consideration to whether the conditions precedent contained in the licence had been satisfied when, in fact, its powers were as broad as they would be when granting a new licence.
Held, claim dismissed. Section 26A of the Coal Industry Act 1994 fell to be construed in a way that did not have retrospective effect and, implicitly, did not apply to an authorisation which had already taken effect before the section was brought into force on 1 April 2018. Consequently, its effect was that the approval of the Welsh Ministers was required before any new or additional authorisation, whether contained in a new or existing licence, could come into effect. An “authorisation” for that purpose included an authorisation contained in a Part II licence which had been postponed pursuant to conditions imposed in accordance with section 27(3)(a), bearing in mind that the recipient of such a licence was entitled to expect that, if they satisfied those conditions, the authorisation contained in the licence would take effect. It followed that the section 26A power did not apply if the licensee had held the authorisation, or postponed authorisation, before section 26A came into force. Accordingly, the ministers had correctly decided that they had no power pursuant to section 26A to make a determination on the operator’s application which related to an existing licence granted before section 26A came into force (paras 86, 98–99, 101, 103, 134).
(2) As the authority had issued an authorisation, subject to the satisfaction of conditions, it followed that the scope of those conditions framed its subsequent determination on the operator’s application. Consequently, the narrow task of the authority on the operator’s application was to decide whether, in its reasonable opinion, the conditions precedent contained in the licence had been satisfied, the power to make that determination being implicit in section 28(1) of the 1994 Act. Accordingly, the authority had not misinterpreted its powers or thereby fettered its discretion by taking the approach it had (paras 122, 128–130, 132, 134).
Estelle Dehon KC (instructed by Richard Buxton Solicitors, Cambridge) for the operator.
Gregory Jones KC (instructed by Welsh Government Legal Services, Cardiff) for the ministers.
Matthew Henderson (instructed by Browne Jacobson LLP) for the authority.
The operator did not appear and was not represented.