Government admits legal “error” in coalmine planning approval, citing Supreme Court downstream emissions ruling

The Secretary of State for Housing, Communities and Local Government has accepted there was an "error of law" in her predecessor's decision to grant planning permission for a coal mine in Cumbria in light of the recent landmark Supreme Court decision on downstream emissions.

The new Secretary of State, Angela Rayner, has decided not to defend the decision, which was set to be scrutinised by the High Court later this month.

Two separate claims were lodged by Friends of the Earth and South Lakes Action on Climate Change (SLACC) in early 2023 for a statutory review of the decision by the then Secretary of State, Michael Gove, to call in and grant planning permission for the mine in December 2022.

The two groups advanced grounds that argued the Government did not consider the international precedent that opening a new mine would set, the impact of opening the mine on the global coal market, and the impact of the mine's 'downstream emissions'.

The ground that concerned downstream emissions made direct reference to the Court of Appeal's decision in R(Finch) v Surrey County Council [2022], which involved the county council's decision to grant planning permission for an onshore oil drilling project.

The Supreme Court has since ruled that Surrey's planning permission for the project was unlawful because it failed to consider the downstream greenhouse gas emissions that will occur from the eventual use of the oil as fuel.

As a result of the judgment, the Secretary of State (SoS) is now set to argue at a statutory review hearing later this month that the decision to green-light the coal mine should be quashed.

A spokesperson for SLACC said: "In a reasoned and careful 'Statement of Reasons,' the SoS explains that the re-assessment is the result of the Supreme Court's recent judgement on the 'Finch v Surrey County Council' case. 

"It is now clear that the combustion emissions, i.e. from the use of the Cumbrian coal, should have been assessed as an indirect effect of the new extraction in the Environmental Impact Assessment.

"We don't know what West Cumbria Mining will do, but we are pretty sure that the hearing of our legal challenges will open on the 16th July as scheduled.

"Only the court can quash the planning consent, and that is what we are hoping for."

West Cumbria Mining has been approached for comment.

Adam Carey