The mining company, Merthyr (South Wales) Ltd, is trying to do the residents of Merthyr Tydfil out of tens of millions of pounds worth of restoration at Ffos-y-fran opencast coal mine by massively reducing the restoration it agreed to carry out at the end of 16 years of coal mining. To understand the lasting impacts this would have, and why we must resist it, we've made a guide on the community impacts of two other 'zombie' restorations in South Wales where the same happened.
Former opencast coal mining sites like East Pit, Margam Parc Slip, Nant Helen, and Selar are all recent examples of 'zombie restorations' carried out on budgets often amounting to 10% of what the promised restoration would have cost - sometimes even less. Ffos-y-fran looks set to join that list. Restorations are so-called because they are meant to return natural life to the area after coal mining has finished, often with promises of even more natural habitat and life than there was before. But just like zombies, these restorations is that they can appear fairly normal if you don't look too closely and you didn't know what it looked like before (depending on the movie!)... but there's little natural life in these areas after coal mining.
Often planning permission is granted for coal mining on the basis that the area will be restored with even better natural habitats and public amenity (access, facilities etc.) than before. Surrounding communities pay the price for the promised restoration with years of noise, dust, and disruption to their daily lives. When that restoration is inevitably denied by profiteering mining companies, communities report:
The UK was one of the first countries in the world to mine coal so industrially. Many of those coal mines were abandoned, not all of which are even mapped - though over two thousand recorded waste dumps (coal tips) in South Wales alone hints at the scale. Opencast coal mining left particularly visible scars on the landscape so the voids left over were meant to be filled in after the coal was extracted. When applying for coal mining permission, coal mining companies would sign contracts binding them to pay glowing nature reserves to be established after the coal was extracted. But most of the time, these companies siphon off the profits and declare bankruptcy, or find legal loopholes, to dodge their responsibilities to restore the mess they created.
Fortunately, Councils usually require that a small amount is paid to them by the coal mining company either at the start of a coal mine or as it progresses. But this is often around just 10% of the cost of restoring an opencast coal mine. So when the coal mining companies wriggle out of their contractual duty to clean up the mess they created, the Councils are often forced to then pay these same companies these small amounts of money to do basic works to make the site at least safer and less of an eye-sore for the communities living around it - but at 10%, that money doesn't go far, and can't erase the injustice of broken promises to those communities who also paid in years of coal mining, noise, dust, and disruption. Read our flagship report tracking restoration an seven recent sites across South Wales.
To restore the site of a sprawling opencast coal mine can cost over £100 million. The original Ffos-y-fran restoration scheme is estimated to cost £75-125 million. Merthyr Tydfil Council got £15 million from the coal mining company, Merthyr (South Wales) Ltd in 2019, after taking the company to court. Merthyr (South Wales) Ltd is now refusing to fund the restoration it agreed to, despite posting record profits and selling an extra c640,000 tonnes of coal than it was permitted to.
Despite the injustice of it, the Merthyr Tydfil Council's £15 million will theoretically go further if it's paid to Merthyr (South Wales) Ltd to carry out a zombie restoration compared to a new company, as Merthyr (South Wales) Ltd already has its machinery and employees on site from when it was coal mining. The same happened when Celtic Energy Ltd refused to fund the restoration of four coal mines it operated in South Wales, stealing £millions from local communities and paying their Directors huge bonuses that year. Each Council paid Celtic Energy Ltd even more money to carry out zombie restorations at each site, leaving a legacy of bitterness in local communities that's alive today.
Zombie restorations typically cut corners in the following areas:
In May 2023, Coal Action Network wrote to the Climate Change, Energy, and Infrastructure Committee (CCEIC) of the Welsh Senedd, informing the Committee of the ongoing illegal coal mining at Ffos-y-fran in Merthyr Tydfil, and the Council and Welsh Government’s refusal to use their enforcement powers to prevent the daily extraction of over 1,000 tonnes of coal. After being informed of this context, the CCEIC committed to a short committee inquiry on Ffos-y-fran and the broader failure of restoration of former opencast coal mine sites, with oral evidence sessions in April and May 2024, in which Coal Action Network participated. In August 2024, the CCEIC published its report on the handling of Ffos-y-fran and restoration of opencast coal mining sites across South Wales, citing ‘missed opportunities’ and referring to Ffos-y-fran as “symbol of the system's failures”. Both the Welsh Government and Merthyr Tydfil County Borough Council (MTCBC) responded in September 2024 to the 26 recommendations contained in the CCEIC’s report. A selection of their responses are summarised or quoted below with our analysis following each. This is the brief version, check out our full analysis report with accompanying pictures.
The Welsh Government should commission an independent review to assess the extent of, the funding needed to restore opencast sites to an acceptable level. The independent, review should consider what constitutes an “acceptable level” in consultation with local, authorities and communities.
Welsh Government isn’t liable for funding a programme dealing with open cast mining and land reclamation. Welsh Government has had statutory powers over ‘derelict land’ since April 2006, to protect public safety, create development land and enhance the environmental and social well-being of Wales. In recent years funding for such activity “has been restricted”. The Welsh Government is therefore concerned that assessing the costs to restore open cast sites may create an expectation that Welsh Government will then fund that restoration.
The operator and landowner is responsible for restoration and aftercare of opencast sites. They must also ensure that sufficient finance is set aside to enable them to meet restoration and aftercare obligations.
The Welsh Government repeat this through its response to the CCEIC’s recommendations, yet not once explain who is responsible when the operator and landowner fail to, or claim not to have, set aside sufficient finance to restore the site – which has happened at around 7 sites within the past 10 years in South Wales alone.
The Welsh Government should require local authorities to ensure all Planning Officers’ reports are available online alongside associated planning documents, including revised, restoration plans, where relevant.
We agree that transparency in planning decision making must be achieved, however, insisting on specific web publishing requirements at this time is premature.
The thrust of recommendation 9 is to ensure Planning Officer’s reports are made public, as Planning Officers’ reports summarise in plain English numerous technical planning documents. Public access to this key report would greatly improve transparency. The Welsh Government should urge Councils to make Planning Officers’ reports publicly accessible, where possible.
The Welsh Government should reconsider the proposal from the 2014 report to establish a virtual “Centre of Excellence” for restoration planning, particularly in light of potential coal-tip reclamation proposals, and lead discussions with local government on how to implement this.
Given our existing presumption against coal extraction, we expect “very few schemes being brought forward”. Our primary focus is to ensure that disused tips are safe and to deliver a modernised, fit-for-purpose regulatory regime. After the disused mine and quarry tips Bill is passed The Welsh Government will take “a more detailed strategic approach to mining and industrial legacy in Wales – this will need to include reclamation of disused tips and management of open cast mining.”
Contrary to the Welsh Government’s expectation of “very few schemes”, right now there are two schemes proposing coal extraction in South Wales, and a further application to downgrade the remediation scheme for Ffos-y-fran is expected before the end of this year. All these schemes would benefit from the kind of oversight the CCEIC are proposing with its recommendation for a Centre of Excellence, so action by the Welsh Government is needed now rather than years into the future.
The Welsh Government must engage with the UK Government with the aim of removing the Coal Authority’s statutory duty to maintain and develop an economically viable coal mining industry.
Whereas we would wish for the Coal Authority to remove its statutory duty to maintain and develop an economically viable coal mining industry, this duty has no practical effect in Wales… The Welsh Government is confident that it has in place the necessary policy and processes to ensure the climate emergency and nature emergency are fully reflected in any decision making.
Contrary to the Welsh Government’s confidence, its policies were deemed compatible with an opencast coal mine extension just last year in 2023. Additionally, the Welsh Government Minister for Climate Change Julie James wrote to the UK Government in 2021 stating that: “…we consider the statutory duty of the Coal Authority to develop and maintain a viable coal extraction industry must be removed if we are to achieve our policy ambitions…”, which is at odds with the Welsh Government’s response to the CCEIC’s recommendation, and there hasn’t been relevant Welsh policy evolution in the meantime to explain this new position.
The Welsh Government should review and update the Minerals Technical Advice Note 2 (MTAN2) to ensure it is fit for purpose, particularly in the context of new developments and coal tip remediation.
Minerals Technical Advice Note 2 Coal (MTAN2) contains comprehensive planning guidance which is robust about restoration and aftercare schemes for coal extraction. Along with all other planning policy, MTAN2 is kept under continual review to ensure it is kept up to date, fit for purpose and relevant.
The Welsh Government released MTAN2 in 2009, so it fails to reflect the many relevant policy developments over the past 15 years. The Welsh Government’s refusal to review MTAN2 is also bewildering given the policy has ostensibly failed to secure decent restoration of numerous coal mining sites across South Wales since its implementation. MTAN2 needs to be reviewed in line with the CCEIC’s recommendation.
The Welsh Government should incorporate provisions for the restoration of former opencast sites within the forthcoming Disused Tips (Mines and Quarries) Bill.
“In his Legislative Statement on 9 July 2024, the then First Minister made clear that inclusion of provisions relating to restoration of former opencast sites within the forthcoming Disused Tips (Mines and Quarries) Bill (the Bill) is not feasible at this time.” The Welsh Government cites further delay due to expansion of scope, and affordability as the key reasons for its position.
Coal tips are created by the act of deep coal mining. Overburden mounds are created by the act of opencast coal mining – there is little difference between the two in their risk or cause. The other hazards posed by abandoned and under-restored opencast coal mining sites should also be dealt with in the same legislation, given their shared cause, similar urgency, and methods of resolution (monitoring, landscaping, and earth works).
The Welsh Government must mandate public consultation for all stages of the restoration process, including when revised restoration plans are brought forward.
Public participation is very important at all stages of the planning process and is to be encouraged. The wide range of development types and scales mean planning legislation can only set a minimum standard of consultation…however we expect planning authorities to consult where the public is materially affected by the submitted details.
A restoration plan represents a promise made to nearby communities before they endure what is often years of disruption, noise, and dust during subsequent coal mining. Accordingly, those communities should be meaningfully consulted on proposed changes to that promise, with their feedback given significant weight in shaping associated planning decisions and conditions. We ask if the Welsh Government will issue guidance to Local Planning Authorities to this effect, to act on its acceptance in principle of the CCEIC’s recommendation.
The Welsh Government should advise local authorities to designate a specific officer as a point of contact for the local community, providing a direct communication channel between residents and local authorities on matters relating to sites or similar developments.
MTAN2 recommends the mining company appoints a site liaison officer. Additionally, Local Planning Authorities have a Planning Case Officer before an application is approved, and the enforcement team for after an application is approved.
Within Local Planning Authorities, Case Officers often say they are too busy with their main work to engage more with public enquiries and concerns. Given the potential impact of planning applications on nearby communities, there’s clearly a need to have a dedicated contact point for community input and involvement. We ask if the Welsh Government will issue guidance to Local Planning Authorities to this effect, to act on its acceptance in principle of the CCEIC’s recommendation.
The Welsh Government should advise local authorities to create online portals where residents can access up-to-date information on all stages of the restoration process.
Insisting on specific web publishing requirements at this time is premature. The Welsh Government is working with the Centre for Digital Public Services (CDPS) in exploring how digital solutions can improve the planning system in Wales. It is anticipated that the communication of decisions will form an integral part of that work. This will bring together the variability currently seen across authorities in a managed cost-effective way.
The Welsh Government should expedite online public access to planning documents, and have facilitating public engagement as an explicit aim of this work. The poor design of some planning portals currently create barriers to community members accessing critical information about developments that will potentially impact them. We ask the Welsh Government to centre a public consultation in its design of digitalised planning systems.
The Welsh Government should encourage the use of citizens' assemblies as forums for discussing the future of restoration sites, particularly where restoration failed to meet the original planning permission and compromises need to be made.
National planning guidance already recognises that well established liaison committees help to provide a better understanding of the impacts to be expected from mineral extraction. Many quarries and coal sites have established liaison committees which act as a forum for regular discussion and explanation of current problems. Where regular complaints are received or there is concern about local impacts the local planning authority should request that the operator cooperate in establishing regular meetings of a nominated group.
We agree with the National Planning guidance’s promotion of community liaison committees, but find execution is inconsistent, and in some cases, absent altogether – even where there are serious breaches of planning control and trust. This has left some participating residents we’ve spoken with feeling ignored and apathetic. We ask if the Welsh Government will reconsider the sentiment of the CCEIC’s recommendation, by strengthening the National Planning guidance on community liaison committees.
The Welsh Government must explore stronger enforcement mechanisms to address breaches of planning controls without delay, such as the mining activities that continued at Ffos-y-Fran after the licence expired.
The Town and Country Planning Act 1990 provides a range of effective enforcement options depending on the circumstances. Enforcement is focused on addressing the unacceptable impacts of unauthorised development rather than punishing the developer. Given the complex nature of planning impacts on both the environment and people it is sometimes acceptable to allow unauthorised activities to continue while consideration is given to the best course of action. That is what Merthyr Tydfil County Borough Council concluded at Ffos-y-Fran. However, where unacceptable harm is happening, the law does currently provide authorities with powers to stop activities immediately, either through a stop notice or Court injunction.
Ffos-y-fran highlights that enforcement options are only robust to the extent that they can be implemented. For 15 months, Merthyr Tydfil County Borough Council believed the consequences of using enforcement options available to it were worse than allowing severe, long-term, harmful, and persistent breaches of planning control. This suggests that current enforcement options are not fit for purpose. Therefore we ask if the Welsh Government will reconsider the CCEIC’s recommendation and review existing planning enforcement options for their practical effectiveness in controlling largescale developments?
The Welsh Government should consider the broader implications of the failures at Ffos-y-Fran and implement systemic changes to prevent similar issues in future, including in relation to coal-tip reclamation sites.
Welsh Government coal extraction planning policy is clear that development proposals will only be approved in wholly exceptional circumstances. There will therefore be very few schemes being brought forward. At the present time, our primary focus is to ensure that disused tips are safe and to deliver a modernised, fit-for-purpose regulatory regime.
In the face of the Welsh Government’s expectation of ‘very few schemes’, there are currently two schemes in pre-application consultation (Bedwas Tips and an extension to Glan Lash) proposing coal extraction in South Wales, with remediation dimensions. Ffos-y-fran is a current example of the abject failure of planning control to secure the agreed restoration, even after allowing 15 months of illegal coal mining with an associated 1.6 million tonnes of CO2. Ffos-y-fran is not a lone example, but rather part of a history of planning control failing to deliver the agreed standard of restoration at East Pit, Selar, Margam Parc Slip, and Nant Helen within the past decade alone in South Wales. If the Welsh Government refuses to learn lessons from this egregious breach of its own national policy on coal mining, it calls into question whether the Welsh Government gives the CCEIC’s findings the gravitas they clearly merit. Such a refusal also risks the repeat of mistakes that led to avoidable harm to surrounding communities, the local environment and restoration liability, our shared climate, planning control, trust in the Local Planning Authority, and Wales’s reputation as a climate leader. We ask the Welsh Government to reconsider the relevance and urgency of reviewing the broader implications of the failures at Ffos-y-Fran and implement systemic changes to prevent similar issues in future, in-line with the CCEIC’s recommendation.
In the event that the water cannot be drained from the, voids at the site, Merthyr Tydfil County Borough Council must ensure that any, water bodies resulting from the restoration at Ffos-y-Fran are safe and provide, benefit to the local community.
Accepting this recommendation with no further comment will not reassure local communities, particularly given the lack of consultation to date, and unsafe conditions documented around the flooded voids at similar sites of Margam/Parc Slip and East Pit former opencast coal mines.
Merthyr Tydfil County Borough Council must ensure, that the revised restoration plan reflects, as a minimum, the objectives of the, original restoration plan, including: safe public access across the East Merthyr, historic landscape with a new network of trails and footpaths; sustainable, wildlife habitats and biodiverse environmental sites; protection and restoration, of surviving heritage features; and the return of most of the site for traditional, commoners’ use.
Any revised scheme would inevitably differ in that overburden mounds 2 and 3 are, likely to be retained and a body of water will be incorporated into the scheme. The developer has also, indicated that they would wish to retain the motorcross facility.
Allowing the void to flood and letting the site operator leave its colossal coal tips (overburden mounds) above ground amounts to an abandonment of the original restoration objectives promised to local communities. As with MTCBC’s refusal to issue a Stop Notice to prevent the daily illegal mining of over 1,000 tonnes of coal, allowing a noisy motocross to be atop one of those coal tips that operated during this period of unregulated illegal activity, would be seen as another betrayal of local communities to the benefit of the mining company.
Merthyr Tydfil County Borough Council should fully, involve local residents in the consideration of revised restoration plans for the, Ffos-y-Fran site.
We are disappointed at this glib and non-committal comment and invite MTCBC to properly respond to the CCEIC’s recommendation 24.
Merthyr Tydfil County Borough Council should publish, the application for the revised restoration plan at Ffos-y-Fran and the planning, officer’s associated reports
Merthyr Tydfil County Borough Council:
Response: Noted
Our analysis:
We are disappointed at this glib and non-committal comment and invite MTCBC to properly respond to the CCEIC’s recommendation 25.
The Senedd’s Climate Change, Environment, and Infrastructure Committee (CCEIC) has released a critical report on the management of opencast coal mining in Wales, particularly focusing on Ffos-y-Fran, one of the last opencast coal mines in the region. The report describes Ffos-y-Fran as a “symbol of the system's failures”, highlighting significant shortcomings in oversight.
The CCEIC specifically calls out Merthyr Tydfil County Borough Council (MTCBC) for its inaction regarding illegal mining activities that continued after the mine's license expired in September 2022. The report questions whether MTCBC could have done more, noting the Coal Authority's concerns about the lack of a robust closure plan.
Local residents have expressed deep concerns about their treatment by public authorities. The committee emphasized the need for improved transparency and engagement, urging MTCBC to involve residents in the revised restoration plan.
Campaigner Chris Austin welcomed the report, stating it offers strong recommendations for policy changes regarding coal mine restoration. He expressed hope that the findings would lead to better outcomes for Ffos-y-Fran and prevent future issues.
We praise the CCEIC for investigating the failures that allowed illegal mining to occur without repercussions. The focus now must be on the Welsh Government and Merthyr Tydfil County Borough Council implementing the committee’s concrete recommendations to restore justice to affected communities.
Among the 26 recommendations (see below for a full list), the CCEIC calls for the Welsh Government to ensure that policies on opencast coal mining are robust and protective of local communities. The Coal Action Network advocates for a clear ban on coal mining in Wales, similar to Scotland's 2022 decision, to prevent mismanagement in the future.
The report serves as a crucial reminder of the need for accountability and proactive measures in managing natural resources in Wales.
Own emphasis
Published: 08. 08. 2024
The Ffos-y-fran opencast coal mine in Merthyr Tydfil, South Wales, has become a truly cautionary tale on the power of the fossil fuel industry and of the impunity of companies behind large-scale projects. In its most recent act of environmental vandalism, mining company Merthyr (South Wales) Ltd removed its pumps to allow the massive void it created to fill with water. Permitting millions of gallons of water to collect above the town of Merthyr Tydfil without an assessment by a Reservoir panel expert is dangerously reckless.
Key to the current restoration plan (agreed in 2007) was the return of the huge overburden mounds into the void that were created when the void was excavated to reach the coal. Every day the void fills with water, though, makes returning these overburden mounds to the void more expensive and logistically difficult, as that water would need to be drained first. This is likely to be the intention—Merthyr (South Wales) Ltd is refusing to fulfil its legal obligation to fund the restoration plan, so it’s looking to cut corners. Avoiding shifting millions of tonnes of overburden back into the void is a large corner to cut. Removing the pumps, that have been draining water from the void for the past 15 years, and taking months to apply to the Council for a budget restoration deal means that Councillors would have little choice but to rubber-stamp approval. The Council have admitted this would affect the "viability" of the restoration plan.
Coal Action Network’s drone footage on Monday 11th March raised the alarm bell about the rising water levels. With this footage, a local resident informed Merthyr Tydfil County Borough Council of the rising water levels, only to be told that the Council was already aware of it, and that Merthyr (South Wales) Ltd had removed the pumps with no intention of reinstating them. Yet the Council made not move to inform any residents living close to the mine of the massive build up of water above their heads. The Council’s oversight of 15 months of illegal coal mining and now this intentional derailment of the current restoration plan is a further dereliction of its responsibility to the safety and wellbeing of town inhabitants. The Council has failed to hold Merthyr (South Wales) Ltd to account for its many transgressions over the past 15 months of illegal coal mining, with baffling impotence. Merthyr (South Wales) Ltd’s most recent action to remove pumps from the void is directly breaking the enforcement notice served to it by Merthyr Tydfil County Borough Council, but we won’t hold our breath waiting for the Council to do anything about that…
Find out more about the Ffos-y-fran opencast coal mine...
Sign our petition for its proper restoration.
The Crown Prosecution Service has dropped all charges against the four Extinction Rebellion (XR) activists who blockaded the entrance to the UK’s largest open-cast coal mine, last summer with a pink boat.
While removing the immediate burden of legal confrontation for the defendants, the decision has left a “crater of unfinished business” in the fight for climate justice and accountability for local residents..
“The action was always designed to have a much deeper impact beyond the immediate disruption with a pink boat,” explained Liz Pendleton, one of the four defendants who occupied the site for over 24 hours in July 2023. “It was designed to expose the alleged illegal activities and environmental negligence of the mining operation, in particular, its continued operation beyond permitted planning conditions and contradictory and misleading financial statements which may well constitute fraud.”
The Ffos-Y-Fran mine in Merthyr Tydfil, Wales had been operating without a licence for almost ten months when XR activists took direct action.
“By denying us our day in court the CPS has denied us the opportunity to shine a light on this potentially illegal and criminal operation,” said Liz.
The legal proceedings revealed a shocking lack of cooperation from the mine, including failure to provide basic operational logs, communications between the mine and governmental bodies, and internal documents relating to the financial and environmental management of the mine's operations. This critical information would have shed light on the legal position of the operation and whether funds had been set aside for environmental restoration - which was a condition for the getting the go ahead in the face of overwhelming local opposition. The defendants were also confident this would have led to their acquittal.
The dropping of the case also casts doubt on the legitimacy of the arrests, as in the case of aggravated trespass the police can clearly be seen acting in the interests of corporate bodies who then fail to prove that they themselves were carrying out lawful activities.
The discontinuation of charges is a testament to the strength of the activists case and the shaky foundation upon which the mine's operations stood, explained Raj Chada from Hodge Jones & Allen, representing the defendants:
“In seeking disclosure from the CPS, we highlighted the need for transparency on several critical points. Our requests were aimed at uncovering potential evidence of the mine operating beyond legal scrutiny, which raises concerns about the legality of its operations. The CPS's inability to meet these disclosure obligations casts a shadow over the proceedings and suggests that the depth of the mine's legal and environmental mismanagement may be greater than previously understood.”
For over a decade and a half, the Ffos-Y-Fran mine has been a symbol of the environmental and social challenges that face communities at the ‘coal face’ of climate degradation. The abrupt end to this case marks not a clear-cut victory but a complex milestone in the ongoing struggle. While it spares the defendants the strain of a continuing court battle - already exceeding seven months in duration - it denies the platform to publicly expose the depth of negligence and alleged fraud by the mine's operators, Merthyr (South Wales) Ltd., including their failure to fulfil obligations towards land reparations and the creation of green jobs.
Speaking upon hearing the news, local resident and defendant Marcus Bailie commented: “Our fight was not just against the physical act of coal extraction but against disregard for the land's future and the community's well-being. The piles of coal and the colossal scar on the landscape left behind serve as stark reminders of the environmental impact that has yet to be addressed. The real victory would have been to hold those responsible to account in a public forum, forcing a reckoning with the consequences of their actions.” Marcus went on to say, “We’re not the criminals here!”
Chris and Alyson Austin, residents of Merthyr Tydfil who have been campaigning for years for the mine to be closed said: “We feel angry and betrayed about the waste-land they have left behind.”
The bittersweet outcome underscores the resilience and dedication of activists and the broader environmental movement. It also highlights the complexities of seeking justice in a system where procedural technicalities can overshadow substantive issues. The fight for the Ffos-Y-Fran mine was never just about legal vindication; it was about bringing to light the injustices inflicted upon nature and communities - and campaigners promise, it won’t end here.
For further information, quotes, or to arrange interviews, please contact: press@extinctionrebellion.uk | +44(0)7756136396
We're not celebrating the purported end of coal mining at Ffos-y-fran in Merthyr Tydfil, South Wales today. Because the abject failure of Merthyr County Borough Council to stop the past 15 months of illegal coal mining at Ffos-y-fran has resulted in:
The Welsh Government, rather than stepping in to issue a stop notice to prevent the illegal coal mining, even transported the illegal along rail lines owned by the Welsh Government to customers...and continue to do so. The coal company has amassed a huge stockpile of coal at the rail terminal to continue selling off after 30th November - largely made possible by the Welsh Goverment's rail lines.
The Welsh Government's policies against coal mining are obviously not strong enough - why won't the Welsh Government take its place next to Scotland in issuing a clear ban on coal mining?
There are around 150 workers at Ffos-y-fran who face redundancy today. Merthyr (South Wales) Ltd has let workers down. The company had many years of knowing when planning permission expired, and to retrain and support workers to find work in more sustainable industries for when that happens... but hasn't. To add insult to this injury, the company further let workers down by refusing to pay for the restoration that it's legally obliged to, and which would have provided many workers with years of work to come on site, in the green sector of nature restoration.
The final restoration plan promised to local residents since 2007 now hangs in the balance as the mining company makes off with bumper profits from both legal and illegal coal mining, but refuses to meet its obligation to pay for the restoration. It's siphoned MILLIONS of pounds of profits into related companies, and neither the Council nor the Welsh Government seems intent to challenge that. Local residents and the Welsh Government's own report warned the Welsh Government and Local Council nearly a decade ago of this exact risk - why wasn't that acted on? Sign our petition to demand the Welsh Government commits to delivering:
We obtained a letter from the Coal Authority to the Merthyr Tydfil County Borough Council, in which the Chief Executive of the Coal Authority is scathingly critical of inaction within the Council and their handling of Ffos-y-fran. The Council must be held to account for its failings.
Extinction Rebellion Cymru protestors blockaded Ffos-y-fran illegal operation for over 24 hours - which is 24 hours longer than Merthyr County Borough Council managed to. Despite the illegal activities of Merthyr (South Wales) Ltd, its owner David Lewis has been left untouched. On the other hand, XR protestors were arrested, held in police cells, and have court hearings about for preventing illegal coal mining. Please donate to their legal fees crowdfunder against this gross injustice.
01 September 2022: Merthyr (South Wales) Ltd applies for a S.73 time extension to mine coal from Ffos-y-fran, and to accordingly delay and vary restoration works.
06 September 2022: Planning permission ends for coal mining at the Ffos-y-fran site, after 15 years and 3 months of operations.
12 September 2022: first reports to Merthyr Tydfil County Borough Council (MTCBC) have been made by local residents of coaling beyond the end of planning permission.
13 September 2022: Local residents submit letters of objection to the Ffos-y-fran extension application.
20 September 2022: CAN submits a letter of objection to the Ffos-y-fran extension application.
27 September 2022: Local residents were supplied with a statement from the Local Planning Authority via their Assembly Member stating; '“If coal mining operations continue on site, this would result in a breach of the planning conditions and may be subject to enforcement action. At this stage because a planning application has been submitted, which seeks to amend to the current permission and enable operations to continue on site, it would not normally be expedient to take enforcement action until that application has been determined…”.
14 October 2022: Local Residents apply to the Planning Directorate (Wales) asking them to 'call-in' the planning application for it to be determined by the Welsh Government
23 October 2022: CAN launches a 38 Degrees petition for Welsh Ministers to call in and reject the application to extend Ffos-y-fran.
12 January 2023: two local residents hand-deliver petition with over 20,000 signatures to the Welsh Government to call in and reject the application to extend Ffos-y-fran.
12 January 2023: CAN emails the head of planning at Merthyr Tydfil County Borough Council for confirmation whether coal mining is—or has been—occurring at Ffos-y-fran beyond the end of planning permission. The Case Officer responds on 20th January as below.
19 January 2023: CAN contacts MS Dawn Bowden to alert her to the suspected planning infringement within her constituency. The Office of MS Dawn Bowden responds that they will seek an update from the Local Planning Authority regarding the site and current activities.
20 January 2023: Merthyr Tydfil County Borough Council‘s Principle Planning Officer responds that “It is my understanding that coaling mining has presently ceased on site, pending the outcome of the current planning application”. This understanding was formed based on an update provided by the mining company rather than any kind of inspection or investigation, and did not answer whether coaling has occurred at any point since the end of planning permission.
23 January 2023: Merthyr Tydfil County Borough Council Planning Councillors and Local Planning Authority staff are invited to a webinar on restoration issues from coal mining in South Wales, featuring Ffos-y-fran in Merthyr Tydfil. Every Council we invited participated in the webinar apart from Merthyr Tydfil County Borough Council.
27 January 2023: FOE’s Planning Specialist submitted a screening direction request to Merthyr Tydfil County Borough Council, challenging the Planning Officer’s assessment that a new Environmental Impact Assessment (EIA) was not needed for the extension application despite the fact that the last EIA is over 15 years old.
30 January 2023: CAN shares Production and Manpower Statistics from The UK Coal Authority spanning the last 6 months of 2022, indicating coal mining at Ffos-y-fran has continued unabated at the site beyond planning permission.
02 February 2023: Merthyr Tydfil County Borough Council‘s Principle Planning Officer confirms they were unaware of these statistics and would need to investigate them further - “I can then determine whether the matter should be escalated with our enforcement team and what suitable course of action should be taken, pending the outcome of the current planning application”. The Planning Officer reiterated that based on conversations with the mining company, “activity taking place on site, largely [emphasis added] relate to the slippage that occurred in August 2022”.
06 February 2023: CAN requests an update from the Merthyr Tydfil County Borough Council‘s Principle Planning Officer’s review of the UK Coal Authority’s statistics indicating ongoing coal mining at Ffos-y-fran. No answer was given.
16 February 2023: MS Dawn Bowden’s office shares with us part of Merthyr Tydfil County Borough Council Local Planning Authority response to their request for an update “At present we are of the view that the works taking place on site largely relates to the slippage and incorporates some restoration works. Should this situation change it would be necessary for us to consider whether a breach in the planning conditions has taken place and whether it would then be expedient to take enforcement action pending the determination of the current application”. This indicates the Local Planning Authority still has not carried out any investigation, and would only consider enforcement after the determination of the extension application.
03 March 2023: Richard Buxton Solicitors, instructed by CAN, email Welsh Ministers and Enforcement at Merthyr Tydfil County Borough Council requesting immediate enforcement action is taken at Ffos-y-fran to stop the apparent ongoing breach of planning control.
09 March 2023: A Merthyr Tydfil County Borough Council solicitor answers that “The Council does not consider that it would be a productive use of its officers’ time to provide a detailed response at present to the matters raised in the letter”. The response also reveals that the extension application is due to be considered on 26 April 2023, only after which any issues related to enforcement will be considered. This effectively affords the coal company a de facto, circa 8 month extension—just one month less than what it applied for, and without any democratic process, procedure, or regulatory oversight.
13 March 2023: Richard Buxton Solicitors write to the Welsh Ministers regarding the serious breach of planning control and the Local Planning Authority’s inadequate action to stop it, despite consequences to national-level climate commitments. A response is requested by 20 March 2023.
21 March 2023: Richard Buxton Solicitors write to the Welsh Ministers following up on the missed response deadline. No reply was offered by Welsh Ministers or any representative of the Welsh Government.
18 April: The Coal Authority fail to provide the first quarter of 2023 national coal mining statistics. Statistics for 2022 were used to prove Ffos-y-fran continued coal mining. The Coal Authority weeks later provide only national-level statistics from which it is not possible to isolate what coal is being mined at Ffos-y-fran. The Coal Authority state it will provide the usual break-down but as of 24 May 2023, has not done so.
26 April 2023: Merthyr Tydfil County Borough Council Councillors unanimously reject the application to extend the Ffos-y-fran coal mine.
02 May 2023: Merthyr Tydfil County Borough Council rejects demands that it takes immediate enforcement action via a Temproary Stop Notice in light of the Councillors' rejection of the extension.
04 May 2023: Merthyr Tydfil County Borough Council case officer admits to witnesses coal trucks continuing to leave the Ffos-y-fran coal mine.
08 May - 12 May 2023: Merthyr Tydfil County Borough Council receives over 7000 emails demanding it stops nearly 1,000 tonnes of coal leaving the mine every day with a Temporary Stop Notice. Merthyr Tydfil County Borough Council fails to respond.
10 - 12 May 2023: MS Julie James (Minister for Climate Change) and MS Lee Waters (Deputy Minister for Climate Change) receive over 2,000 emails demand they exercise power 182 of the TCPA to intervene and put a stop to this coal mine, given the Merthyr Tydfil County Borough Council's continuing failure to for over 8 months.
16 May 2023: After communication with CAN, MS Delyth Jewell questions the Welsh Government on its inaction over Ffos-y-fran. MS Lesley Griffiths responds that there doesn't appear to be evidence of continued coal mining, but instead just of coal leaving the site.
19 May 2023: Drone footage seems to evidence the mining and transport of coal to be filtered inside Ffos-y-fran coal mine.
23 June 2023: Coal Action Network obtains an open letter legal opinion from James Maurici (KC) of Landmark Chambers and Toby Fisher of Matrix Chambers, advising amongst other things, that the Welsh Government or Merthyr Tydfil County Borough Council should issue a stop notice to prevent the ongoing illegal coal mining at Ffos-y-fran.
23 August 2023: Together with Good Law Project, we instruct Richard Buxton Solicitors - specialists in planning and environmental law - to initiate judicial review proceedings against the Welsh Government and Merthyr Tydfil County Borough Council for failing to stop the ongoing illegal coal mining.
23 October 2023: A group of over 30 Wales-based NGOs and businesses sign on to a letter to Climate Change Minister Julie James MS and Deputy Climate Change Minister Lee Waters MS demanding the Welsh Government ban coal mining on Welsh soil to avoid another Ffosy-y-fran opencast disaster.
November 2023: Merthyr Tydfil County Borough Council and Merthyr (South Wales) Ltd claim that active coal mining ceased by the end of November. Yet the company continues selling large quantities of coal into 2024, and despite purporting not to be mining in December, produces somewhat more coal in the final quarter of 2023 compared to the same quarter in 2022.
February 2024: XR activists who blockaded coal leaving the Ffos-y-fran site had charges against them dropped as the mining company refused to hand over essential evidence about its finances and conduct to the defence barrister.
March 2024: CAN operated a drone that captured for the first time the flooding void, revealing that the mining company had quietly removed its pumps that were operating for almost the whole life of the mining works, allowing the void to fill with water - presumably to make it impractical to return the overburden mounds to the void it had created, in a further act of betrayal to the communities of Merthyr Tydfil. Despite being a further breach of its contractual restoration plan, Merthyr Tydfil County Borough Council said it was aware but doing nothing to prevent it.
April 2024: CAN, and other groups, were called on to give oral evidence to the Welsh Senedd Climate Change, Energy, and Infrastructure Committee (CCEIC) about the handling of the Ffos-y-fran opencast coal mine debacle. Merthyr Tydfil County Borough Council initially refused but, following severe criticism from the Committee, eventually acquiesced and blamed old staff and the company. Merthyr (South Wales) Ltd refused to attend.
May 2024: so overdue that the company was threatened with being struck off the company register, Merthyr (South Wales) Ltd eventually published it's accounts up until the end of 2022. This indicated the company was making record-breaking profits and had accounted for inflated restoration costs which it had set money aside to pay for.
With support from the Good Law Project, we have filed for a Judicial Review against both the Local Council and Welsh Government’s continuing failure to stop Ffos-y-fran, the UK’s biggest opencast coal mine, selling off over 1,000 tonnes of illegal coal each day right under their noses and to the harm of local residents, the surrounding environment, and our climate.
Even more scandalously, the Welsh Government has been profiteering by transporting this illegal coal along its railways over the past 11 months, to be burned by various customers in direct breach of its own climate commitments and policies against coal extraction.
Good Law Project has joined the fray, and are supporting us to finally stop the environmental onslaught of Ffos-y-fran with a judicial review. This has allowed us to assemble a crack legal team from Richard Buxton Solicitors, and Barristers’ Toby Fisher and James Maurici KC. Please share and donate to Good Law Project’s Crowdfunder (and check out their website, we could gush over all their work).
We are optimistic the legal pressure we’ve just heaped on will finally put a long-overdue end to what should never have happened in the first place. As with our judicial review (and now appeal!) of Aberpergwm deep coal mine, we shouldn’t have to undertake costly legal action to force the Welsh Government to fulfil its obligations to the current and future generations, in Wales and across the world.
See our Statement of Facts and Grounds (PDF) summarised below -
Coal Action Network is seeking to have judicially reviewed:
The grounds of claim are:
Coal Action Network is seeking a hearing on the first available date after 20 August 2023 to determine the following remedies:
After that, we’ll be campaigning for:
But what we must do now is to stop the daily environmental onslaught of the coal mine, producing equivalent to c4,000 tonnes of CO2 every day – or the average daily emissions of 175,000 people living in Wales, which is around 3x the population of Merthyr Tydfil itself! Imagine burning 1.75 MILLION litres of petrol every single morning – that’s the amount of CO2e this coal mine has been allowed to add to our atmosphere every day so far, illegally and without consequence.
Together, you, us, local residents, Good Law Project, and a network of Welsh groups like FOE Cymru, Climate Cymru, and XR Wales will prevail and put an end to this climate calamity any way we can. Let’s show the Council and Welsh Government how it’s done – time to roll up our sleeves and shut this mine down.
Let’s get it done
Respected senior Barristers, James Maurici KC, and Barrister Toby Fisher have today released a blistering open letter of legal advice that reveals for the first time that the company operating the UK’s largest opencast coal mine, Ffos-y-fran, in South Wales is doing so “unilaterally and unlawfully” without the approval of “any democratically elected bodies or persons”, yet the approach of political representatives in Wales so far means “there will be no consequence for that unauthorised and unconstrained activity”. This approach, the Barristers argue, may even be unlawful. The letter further warns this may fail to prevent “future operators from acting in the same way”.
View in original PDF or read below.
IN THE MATTER OF FFOS-Y-FRAN COAL MINE
AND IN THE MATTER OF THE TOWN AND COUNTRY PLANNING ACT 1990
OPINION
For correct paragraph numbering, please refer to the PDF.
INTRODUCTION AND SUMMARY
We are asked by Coal Action Network for our opinion on the ongoing situation at Ffos-y-Fran coal mine, Merthyr Tydfil (‘the Site’). In particular, we are asked for our opinion on the past and future exercise of statutory enforcement powers by Merthyr Tydfil County Borough Council (‘the Council’) and the Welsh Ministers.
THE FACTS
“If coal mining operations continue on site, this would result in a breach of the planning conditions and may be subject to enforcement action. At this stage because a planning application has been submitted, which seeks to amend to the current permission and enable operations to continue on site, it would not normally be expedient to take enforcement action until that application has been determined…”
In conclusion, the Authority is of the opinion that the proposed development, either alone or in combination, is unlikely to have a significant adverse effect on the environment. The extension of 9 months to complete the development previously approved will extend the impacts of the development. However, these impacts have previously been assessed as being at an acceptable level subject to mitigation and limitations provided by planning conditions. There is no proposed change to the method of working and therefore no environmental impacts are envisaged over and above those experienced as part of the 2005 planning permission. As such, the likely effect of the development is unlikely to be significant enough to warrant an EIA.
The First Screening Opinion did not address the climate change impacts of, or greenhouse gas emissions attributable to, the proposed extended life of the development.
“The extension of extraction operations until 31 March 2024 and a delay in the completion of final restoration until 30 June 2026 in order to complete the development previously approved will extend the impacts of the development. However, these impacts have previously been assessed as being at an acceptable level subject to mitigation and limitations provided by planning conditions. There is no proposed change to the method of working and therefore no environmental impacts are envisaged over and above those experienced as part of the 2005 planning permission. As such, the likely effect of the development is unlikely to be significant enough to warrant an EIA.”
The Second Screening Opinion did not address the climate change impacts of the proposed extended life of the development.
THE LEGAL CONTEXT
Wellbeing of Future Generations
Planning permission and EIA
Enforcement powers
“(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted…”.
“(1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.”
“(1) If it appears to the Secretary of State to be expedient that an enforcement notice should be issued in respect of any land, he may issue such a notice.
(2)The Secretary of State shall not issue such a notice without consulting the local planning authority.
(3)An enforcement notice issued by the Secretary of State shall have the same effect as a notice issued by the local planning authority.”
“[s]trictly, and in contrast to s.172, there are no express tests of it having to appear to the Secretary of State that there has been a breach of planning control and having to have regard to the provisions of the development plan and to any other material considerations. However, there is no good reason to infer that the Secretary of State could lawfully issue an enforcement notice without first applying these tests. They are of course very likely to arise in consultation with the local planning authority in any event.”
“if the Act made clear that compensation will not in any circumstances be payable for a use or operation which is in breach of planning control, there would be less concern at the risks of a notice failing on a technicality, and the use of stop notices in appropriate cases would be encouraged”: para 9.5.”
Relevant case law
Discretion over enforcement
“25. Where a developer is acting in breach of planning control, the statutory scheme assigns the primary responsibility for deciding whether to take enforcement steps – and, if so, what steps should be taken and when – to the relevant local authority. The statutory language used makes it clear that the authority’s discretion in relation to matters of enforcement – if, what and when – is wide. That is particularly the case in respect of enforcement notices, the power to issue a notice arising only “where it appears to them… that it is expedient to issue the notice”. That is language denoting an especially wide margin of discretion. Any enforcement decision is only challengeable on public law grounds. Because of the wide margin of discretion afforded to authorities, where the assertion is that the decision made is unreasonable or disproportionate, the court will be particularly cautious about intervening. Intervention is likely to be rare. However, circumstances may make it appropriate. In Ardagh Glass, because the four-year period for enforcement was imminently to expire, a failure on the part of the planning authority to take prompt enforcement steps would have meant that the development would achieve immunity. In that case, the court ordered immediate enforcement action to be taken.”
“So, even though the authority may be satisfied that a breach of planning control has occurred, they may consider it not expedient to issue an enforcement notice because on balance the use causes no planning harm at all, or is beneficial, or may cause insufficient harm to justify the taking of any enforcement action. Alternatively, the authority's conclusions on expediency may determine the nature and extent of any enforcement action they decide to take.”
“[30] Maguire J referred to paragraph [22] of Ardagh Glass Ltd as being in point in the present cases. There was an Enforcement Notice already in existence, the issue was whether a Stop Notice had to be served and there was also an appeal against the Enforcement Notice. It was stated that Sullivan LJ plainly viewed his conclusion on the point as not inconsistent with EU law and Maguire J stated that he was inclined to follow that view.
[31] Maguire J rejected the proposed distinction of the decision in Ardagh Glass Ltd based on the possibility of rectifying the damage in Ardagh by requiring the building to be removed if planning permission was not granted, whereas in the present case it was not possible to return extracted sand.
[32] This Court is of the opinion that there is a distinction to be made between Ardagh Glass Ltd and the present case and that it bears on the application of the principles to be applied. In Ardagh Glass Ltd it was found that the issue of an Enforcement Notice was sufficient to ensure the removal of the unauthorised development if retrospective planning permission was not granted. While the workings might continue in the meantime, it was recognised that ultimately, if necessary, the unauthorised development, in the form of the factory structure, could be removed. However the present case is different in character. There is no such structure to be removed in the event that planning permission is ultimately refused. The unauthorised development is the excavation which cannot be reinstated. Of course, as in Ardagh Glass Ltd, there will also be the ongoing operations at the site but the focus is on the structure rather than the workings. In the present case the issue of the Enforcement Notice will not be sufficient to ensure the removal of the unauthorised development in the form of the excavation between now and the refusal of planning permission. The material extracted is irreplaceable. Therefore the basis on which no Stop Notice was issued in Ardagh Glass Ltd does not apply in the present case.”
THE POLICY CONTEXT
Development Management Policy
“Where an LPA considers that an unauthorised development is causing unacceptable harm to public amenity, and there is little likelihood of the matter being resolved through negotiations or voluntarily, they should take vigorous enforcement action to remedy the breach urgently, or prevent further serious harm to public amenity.”
“An effective development management system requires proportionate and timely enforcement action to maintain public confidence in the planning system but also to prevent development that would undermine the delivery of development plan objectives.
The Welsh Government enforcement review concluded, whilst the system is fundamentally sound, it can struggle to secure prompt, meaningful action against breaches of planning control. The system can also be confusing and frustrating for complainants, particularly as informed offenders can intentionally delay enforcement action by exploiting loopholes in the existing process…
Section 3.6 of Planning Policy Wales is clear; enforcement action needs to be effective and timely. This means that Local Planning Authorities should look at all means available to them to achieve the desired result. In all cases there should be dialogue with the owner or occupier of land, which could result in an accommodation which means enforcement action is unnecessary.
…Section 14.2 of the Development Management Manual… deals with how this policy should be implemented. Paragraph 14.2.5 is particularly useful in that it explains how the dialogue with the owner or occupier is one aspect of dealing with an enforcement case but it should not be a source of delay or indecision.”
Coal policy in Wales
“The opening of new coal mines or the extension of existing coaling operations in Wales would add to the global supply of coal having a significant effect on Wales’ and the UK’s legally binding carbon budgets as well as international efforts to limit the impact of climate change. Therefore, Welsh Ministers do not intend to authorise new Coal Authority mining operation licences or variations to existing licences. Coal licences may be needed in wholly exceptional circumstances and each application will be decided on its own merits, but the presumption will always be against coal extraction.
Whilst coal will continue to be used in some industrial processes and non-energy uses in the short to medium term, adding to the global supply of coal will prolong our dependency on coal and make achieving our decarbonisation targets increasingly difficult. For this reason, there is no clear case for expanding the supply of coal from within the UK. In the context of the climate emergency, and in accordance with our Low Carbon Delivery Plan, our challenge to the industries reliant on coal is to work with the Welsh Government to reduce their reliance on fossil fuels and make a positive contribution to decarbonisation.
Planning Policy Wales (PPW 11) already provides a strong presumption against coaling, with the exception of wholly exceptional circumstances, and Local Planning Authorities are required to consider this policy in the decisions they make.”
“5.10.14 Proposals for opencast, deep-mine development or colliery spoil disposal should not be permitted. Should, in wholly exceptional circumstances, proposals be put forward they would clearly need to demonstrate why they are needed in the context of climate change emissions reductions targets and for reasons of national energy security.”
ANALYSIS
The unauthorised development is likely to be EIA development
The Council’s failure to consider enforcement action prior to its decision on planning permission was arguably unlawful
Notwithstanding this knowledge, the Council adopted the inflexible position that – because a planning application was pending for the activity – it would first consider whether it would grant planning permission before considering enforcement. It identified 26 April 2023 as the date on which the Planning Application would be considered and determined that enforcement action would only be considered after that date. We consider that approach was arguably unlawful because it amounted to the fettering of a statutory discretion and/or because it was irrational in the circumstances.
The Council’s failure to serve a stop notice is arguably unlawful
“the unauthorised development is the excavation which cannot be reinstated… the issue of the Enforcement Notice will not be sufficient to ensure the removal of the unauthorised development in the form of the excavation between now and the refusal of planning permission. The material extracted is irreplaceable.”
The Welsh Ministers failure to consider issuing an enforcement notice before the Council took its own decision was arguably unlawful
“[a] lawful positive decision to the effect that it would not be expedient for the purposes of section 172 to issue an enforcement notice would eventually lead to the development in breach becoming lawful with the passage of time but of itself would not stop the permission lapsing. A lawful positive decision by a local authority cannot without more preclude the exercise by the Secretary of State of his default powers under section 182”.
The Welsh Ministers must urgently consult with the Council and consider, independently, whether to serve a stop notice.
NEXT STEPS
21 June 2023
JAMES MAURICI KC
Landmark Chambers
TOBY FISHER
Matrix Chambers
[1] For the references and calculations behind these figures, see fns 7 – 11 below.
[2] See R. (Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 29569 per Lord Hoffmann at [69] “[i]n a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them … sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved.”
[3] Application P/22/0237
[4] See https://shorturl.at/pAN19.
[5] If the Council had concluded that “wholly exceptional circumstances” had been made out, it might reasonably have been expected to require the mitigation of the climate change effects of the extension by, for example, requiring the developer to offset its emissions.
[6] Robert Carnwath QC, Enforcing Planning Control, HMSO February 1989.
[7] MSWL reported its 2021 emissions as 930,533 tonnes CO2e, excluding methane emissions. (2021 Annual Accounts p 4, Companies House) Coal Authority quarterly reports indicate that total production in 2021 was 602,128; operational (non-methane) emissions were thus reported to be 1.55 tonnes CO2e per tonne of coal mined. Assuming a rate of 1.5 tonnes CO2e per tonne of coal for the 500,000 tonnes coal estimated to be mined during an 18-month period leads to an estimate of approximately 750,000 tonnes CO2e. Methane emissions from the Ffos-y-fran mine has been estimated to be 2,077 tonnes over a 9-month extension by Global Energy Monitor using methodology from Kholod et al, 256 Journal of Cleaner Production (2020), https://doi.org/10.1016/j.jclepro.2020.120489. This equates to 4,154 tonnes over 18 months. Using a conservative estimate of 30 for the global warming potential of methane to convert to carbon dioxide equivalent (see https://www.iea.org/reports/methane-tracker-2021/methane-and-climate-change) this equates to a further 124,620 tonnes CO2e. Or, in all, roughly 870,000 tonnes CO2e.
[8] The 2023 BEIS conversion factor for industrial coal is used (this being a conservative assumption, as the domestic coal conversion factor would produce a higher figure). 500,000 tonnes of coal x 2.39648 BEIS figure for tonnes of CO2e = 1.198 million tonnes CO2 equivalent.
[9] 2023 BEIS conversion factor for Petrol is 2.35 Kg CO2e per Litre. 851M Litres x 2.35 = 2 billion Kg or 2 Million tonnes.
[10] Per capita annual GHG emissions in Wales are 8.6 tonnes CO2e per person. See https://www.gov.uk/government/statistics/uk-local-authority-and-regional-greenhouse-gas-emissions-national-statistics-2005-to-2020, statistical summary (30 June 2022). Over an 18-month period this equates to 12.9 tonnes CO2e per person in Wales (8.6x1.5). 2 million/12.9 = 155,000.
[11] See the Institute of Environmental Management & Assessment (IEMA) Guide: Assessing Greenhouse Gas Emissions and Evaluating their Significance, Second Edition, February 2022.
[12] Section 183(3) of the 1990 Act provides that a stop notice may not be served where the related enforcement notice has taken effect. However, where an appeal against the enforcement notice is made (which must be done before the enforcement notice takes effect), section 175(4) suspends the effect of the enforcement notice until the appeal is finally determined or withdrawn. Accordingly, if there is an appeal against the EN, the Council may serve a stop notice at any time during the currency of the enforcement appeal. For reasons we have explained, however, we consider that a stop notice should be served urgently without waiting for an appeal to be made.
[13] We have considered whether the Council might judge that permitting the continued operation in breach of planning control might be desirable to enable the operator to make profits to plug a shortfall in its available capital for site restoration. We consider this would be an irrelevant consideration in the context of a decision on expediency.
A large opencast coal mine in Merthyr Tydfil, South Wales, mining primarily thermal coal. The mining company won planning permission in February 2005, after appealing its rejection. Opencast coal mining began in 2007, in the face of stiff local protest. On 06th September 2022, planning permission for the opencast coal mining came to an end, 15 years and 3 months after it started. See our other posts about Ffos-y-fran, key company and mine facts and figures, and our campaign timeline from September 2022.
Based on the most recently available official statistics from The Coal Authority, since planning permission ended, by the end of May 2023, nearly 300,000 tonnes of coal would have been mined without any attempt to stop it, at the climate cost of almost a MILLION tonnes of CO2. At a rate of over 1,000 tonnes each day, every day this goes on for, matters. Every day this illegal coal operation continues, produces the CO2 equivalent of burning 1.5 MILLION litres of petrol.
Planning permission for the Ffos-y-fran coal mine ended on 06 September 2022. Not only does that mean the mining company, Merthyr (South Wales) Ltd, is in breach of planning control, it also means that it has no licence, as the Coal Authority require, as a condition of that licence, that the company has active planning permission to mine the coal – something that Merthyr (South Wales) Ltd hasn’t had for months.
The local council (Merthyr Tydfil County Borough Council) refused calls by local residents to take enforcement action for 7 months because it claimed Merthyr (South Wales) Ltd was not mining coal at Ffos-y-fran, but was forced by Coal Action Network to eventually admit that actually, yes, coal mining had been happening.
Then the council refused to enforce the stop of illegal coal mining until after the application to extend Ffos-y-fran had been decided by Councillors on 26th April 2023, which is not unusual practice within planning… but given the irreversible, daily harm occurring at Ffos-y-fran, enforcement action should have been taken.
A month after the unanimous rejection of the Ffos-y-fran extension application by Councillors, no enforcement action has been taken. The most recent reason given by the council is that they are ‘investigating’ and are trying to ‘hold meetings’ with Merthyr (South Wales) Ltd… all the while, the company nears the 9 month extension it originally applied for in illegal coal mining.
The Welsh Government has said that it wouldn’t intervene in Ffos-y-fran until the council decides whether it’ll take enforcement action or not. But the problem with this approach is that the council has already stalled, and failed to take expedient enforcement action to stop the ongoing coal mining. This inaction has so far resulted in 270,000 tonnes of coal, adding 840,000 tonnes of CO2 to our climate crisis - all without planning permission and in direct contravention of national policy.
There are multiple drone videos of ongoing coal mining, such as the one below filmed on 19th May 2023. There are also many photos of laden coal trucks leaving the Ffos-y-fran site and unloading at the nearby coal depot with coal trains arriving and leaving, and lorries of customers coming and going. This is happening at a rate and scale that is not compatible with selling off old coal stocks – particularly since coal mining was supposed to end over 8 months ago. We also have emails from the Merthyr Tydfil County Borough Council confirming that ongoing coal mining is occurring at Ffos-y-fran. One email seems to suggest that the mining company may even have lied to the Council by claiming it wasn’t coal mining when the Council asked.
Merthyr Tydfil County Borough Council should issue a Temporary Stop Notice – an emergency enforcement option to be used in cases just like this. It almost instantly stops the defined activity for a period of up to 28 days. This gives the council the time it may need to assess and enforce long-term planning control, without further harm being done in the meantime. On the week of the 08th May 2023, the council received over 7,000 emails from our supporters demand a Temporary Stop Notice is issued to finally end illegal coal mining at Ffos-y-fan.
The Welsh Government needs to step in without further delay to protect its climate policies, given Merthyr Tydfil County Borough Council’s failure to take the expedient enforcement action described above,. If the Welsh Government exercises its power under S182 of the TCPA 1990, it will be implementing the local democratic decision made by elected councillors on 26th April, not overriding it. And immediate action is needed by the Welsh Government due to the contravention of its own policies and irreversible harm being caused on a daily basis. On the week of the 08th May 2023, the Welsh Government Ministers received over 3,000 emails from our supporters demanding that they use their powers to intervene and finally end illegal coal mining at Ffos-y-fan.
