A recent judicial review has scrutinised the decision by Cumbria County Council and the Secretary of State to grant planning permission to West Cumbria Mining Limited for the opening of a new underground coal mine at Whitehaven, Cumbria. The judgment is available here. Tom Jones, Celyn Evans and Fern Dempsey from our Environmental Disputes team discuss how the courts interpret tougher environmental regulations.
The judgment came as the result of two linked challenges brought by South Lakeland Action on Climate Change local community group and Friends of the Earth Limited (“FoE”). The proposal, which would have extracted 2.8 million tonnes of coal per year until 2050 was granted by the then-Secretary of State Michael Gove, who considered it to be carbon neutral. The appeal was successful on four grounds, setting out what developers must consider as climate change becomes an increasingly significant factor in granting planning permission.
1. The Finch Ground
The judgment is the first to apply the Supreme Court ruling in Finch which held that “downstream” greenhouse gas emissions must be considered in an Environmental Impact Assessment (EIA), not just those produced by the development itself. The purpose behind an EIA is to ensure that the decision-making process behind a proposal is given “with full knowledge of the environmental cost” where projects are likely to have significant effects on the environment.
The argument that there would be no change to the global supply of coal as the opening of the proposed mine would allow other coal to remain in the ground was rejected. The EIA accepted by the Secretary of State did not consider the greenhouse gas emissions that would be emitted but for the mining of the coal, and the assertion that other coal would remain in the ground needed to be more than a mere assertion and based on proper evidence, which the present proposal lacked, and was therefore unlawful.
2. Substitution
When considering a planning application, and when an EIA is completed, the Secretary of State must be satisfied that the substitution (in this case, UK coal) would be a perfect substitution in terms of greenhouse gas emissions. The Secretary of State concluded that the climate impacts of the mine were “neutral or at worst slightly beneficial” due to the degree of substitution.
It was held that the Secretary of State repeatedly found that substitution would not be perfect. Evidence showed that even if 1.1% of the coal was not subject to substitution, it would lead to a net increase in greenhouse gas emissions. The Court found that the Secretary of State repeatedly found that there would be a significant degree of substitution, but it would not be perfect. The Secretary of State had failed to reach any consistent view or give an adequate explanation for the view he had taken.
3. International Impact
Given the UK’s commitment to promoting international action to address climate change and to be seen as a leader in this area, it was held that the Secretary of State had not considered the undisputed evidence and submissions put to him relating to the negative impact the decision to grant planning permission may have to the UK’s climate diplomacy, and may send a message that the UK is not serious about its ambition to become ‘Net Zero’.
4. Offsetting
West Cumbria Mining Limited had proposed various ways to mitigate the emissions as a result of the mining; this primarily included the purchasing of carbon credits which, they argued, meant that the proposal would not have an impact on the UK’s statutory Carbon Budgets. However, the carbon credits would have been from outside the UK and not led to reductions in the UK. It was held that the Secretary of State had erred in law by failing to address FoE’s submissions that offsetting should be within the UK, rather than internationally.
What does this judgment mean?
Developers with significant development projects must now navigate stricter environmental regulations, ensuring comprehensive Environmental Impact Assessments (EIAs) that include downstream emissions are prepared and align with sustainable planning and land use practices. When considering significant developments, authorities will now closely examine downstream emissions and how developers aim to perfectly substitute or be ‘Net Zero’.
A holistic approach may become progressively important as authorities prioritise climate change considerations in granting planning permissions. Developers should consider incorporating legal and technological adaptations to meet new energy use rules, propose robust mitigation strategies like purchasing UK-based carbon credits, and align projects with the UK’s national and international climate commitments.
How can we help?
For more information or advice on the impact of this ruling on your projects, please contact Tom Jones in our Planning and Commercial Disputes team who will be able to support you.
