“(a) holding, managing and disposing of interests and rights in or in relation to the unworked coal and other property which is transferred to or otherwise acquired by it by or under this Act; (b) carrying out functions with respect to the licensing of coal-mining operations...”
“(1) It shall be the duty of the Authority, in carrying out the functions mentioned in section 1(1)(a) above, to have regard to - (a) the need to co-ordinate its practice in relation to relevant property dealings with the carrying out of its functions under Part II of this Act; and (b) the need to secure the safety of members of the public. (2) Subject to subsection (4) below, it shall be the duty of the Authority, so far as practicable, to make available for acquisition by others such of its land and other property as - (a) does not consist in an interest in any unworked coal or coal mine; (b) is not being put to a use which justifies its retention by the Authority; and (c) in the opinion of the Authority, is unlikely to be required for any such use. ... (4) Subject to subsection (6) below, it shall be the duty of the Authority, where it disposes of any interests or rights in or in relation to any land or other property, to secure the best terms reasonably available for the disposal. (5) Subject to subsection (6) below, it shall be the duty of the Authority, in the exercise and performance of its powers and duties with respect to its land and other property, to have regard to the desirability of the exploitation, so far as that is economically viable, of coal-bed methane in Great Britain...” (1) It shall be the duty of the Authority to carry out its functions under Part II of this Act in the manner that it considers is best calculated to secure, so far as practicable - (a) that an economically viable coal-mining industry in Great Britain is maintained and developed by the persons authorised by virtue of that Part to carry on coal-mining operations; (b) that such persons are able to finance both the proper carrying on of the coal-mining operations that they are authorised to carry on and the discharge of liabilities arising from the carrying on of those operations… (2) Subject to section 4 below, it shall be the duty of the Authority, in carrying out its functions under Part II of this Act, to have regard to the desirability of securing - (a) that persons authorised by virtue of that Part to carry on coal-mining operations are persons who have at their disposal such experience and expertise in the carrying on of such operations as are appropriate for ensuring that any authorised operations are properly carried on; and (b) that competition is promoted between the different persons carrying on, or seeking to carry on, coal-mining operations... “(1) It shall be the duty of the Authority, in carrying out the functions mentioned in section 1(1)(a) above, to have regard to - (a) the need to co-ordinate its practice in relation to relevant property dealings with the carrying out of its functions under Part II of this Act; and (b) the need to secure the safety of members of the public. (2) Subject to subsection (4) below, it shall be the duty of the Authority, so far as practicable, to make available for acquisition by others such of its land and other property as - (a) does not consist in an interest in any unworked coal or coal mine; (b) is not being put to a use which justifies its retention by the Authority; and (c) in the opinion of the Authority, is unlikely to be required for any such use. ... (4) Subject to subsection (6) below, it shall be the duty of the Authority, where it disposes of any interests or rights in or in relation to any land or other property, to secure the best terms reasonably available for the disposal. (5) Subject to subsection (6) below, it shall be the duty of the Authority, in the exercise and performance of its powers and duties with respect to its land and other property, to have regard to the desirability of the exploitation, so far as that is economically viable, of coal-bed methane in Great Britain...”
“The Margam area of South Wales contains a large quantity of un-mined high quality coal (and coal bed methane from which electricity can be generated). Margam coal is particularly suited to use as coking coal for steelmaking and for use in power generation. The area also has excellent industrial transport links and a history of coal mining operations. The exploitation of the Margam coal accordingly represents a substantial business opportunity.”
“In my opinion the Corus application has a higher level of certainty of delivery of the project, in that finance to develop the project is available, Corus have a ready market for the coal; are proposing a single access site from existing industrial land, and are in no worse position than Abbey in relation to experience and expertise. There would, therefore, seem to be a greater likelihood of the best terms being achieved on disposal of coal to Corus. If following feasibility they choose to halt the project, the opportunity for yourselves and others to pursue the prospect will still exist.”
“As you are aware, the Authority is subject to the duties set out in [the 1994 Act] with respect to licensing. Under section 2(1), the Authority is subject to a clear obligation to carry out its functions in a manner which is ‘best calculated to secure’ the matters set out in section 2(1) of the Act, which include ‘that an economically viable coal industry in Great Britain is maintained and developed …’. The phrase ‘best calculated’ requires the Authority, in the context of completing licence/lease applications to identify which applicant (if any) is more likely to secure those matters. Under section 2(2) it is also the Authority’s duty to ‘have regard to the desirability of securing’ the matters set out in that sub-section. In its consideration of the applications, and deciding which has most potential to enable the Authority to fulfil its duties under the Act, the Panel notes as follows: (i) Corus has submitted realistic production targets, whereas AML has overly optimistic targets, which in the Panel’s view are unlikely to be achievable; (ii) Corus already has surface rights at its existing site. By contrast, AML has not clearly specified the location(s) of the mine and, hence, there is no certainty regarding its ability to acquire surface rights; (iii) Corus will find it easier to obtain planning consents on an existing industrial site; (iv) Corus put forward clear, tangible timeframes for its proposals whereas AML has been less clear; (v) The Panel considered the likelihood of either party proceeding with its application. The Panel understands that Corus has recently invested about£250 million at its Port Talbot site, which will provide a strong incentive to find a secure source of coking coal at a competitive price. The Panel notes that there are a number of companies with which you have been associated and which are involved in coal mining initiatives, which have failed to make tangible progress in carrying out mining operations, and this fact has raised concerns about AML’s commitment to progress the Margam site; (vi) Corus has an existing and ready market for the coal, in that it has a need for coking coal at its own Port Talbot site. AML’s market is more speculative, although in practice it is also likely to seek to sell coking coal to Corus, and proposes to supply steam coals into the power generation sector. In light of the above, the Authority considers that its Section 2 duties are best satisfied by proceeding with Corus’ application. In particular, this application offers greater deliverability, i.e. a greater likelihood that coal reserves in the application area will be viably recovered and developed. Under section 2(2)(a), the Authority must have regard to the desirability of securing that licensees have ‘at their disposal such experience and expertise’ in the carrying out of coal mining operations. The Panel accepts that AML currently has within the company greater ‘coal mining experience and expertise’ and knowledge of matters relating to coal mining in the region. AML does, however, acknowledge that it will need to employ consultants to take forward the project. Corus intends to employ the relevant mining experience and expertise to progress its proposals, and consequently would also appear to be capable of having an appropriate level of experience and expertise at its disposal in order to pursue its proposals. Under section 2(1), the Authority is required to consider whether licensees have sufficient finance to carry on coal mining operations and to discharge their liabilities. The Panel considers that neither application is materially stronger in relation to the financing of their respective proposals. Both appear able to progress to the feasibility stage. In both cases, as and when an application for a full licence is made, the Authority would need to ensure that the development and mining proposals can be financed…”
“(ii) Corus already has surface rights at its existing site. By contrast, AML has not clearly specified the location(s) of the mine and, hence, there is no certainty regarding its ability to `acquire surface rights; (iii) Corus will find it easier to obtain planning consents on an existing industrial site.”
“The issue[s] of surface rights and site access were raised at the [review] hearing and the Claimant had every opportunity to raise any doubts he entertained. He did not.”
“The Authority was entitled to come to the conclusions it did, given, in particular, that AML did not have surface rights and thus no surface access strategy, whereas Corus had both.”
“Corus put forward clear, tangible timeframes for its proposals whereas AML has been less clear”
“76. The interim decision letter did not refer to time frames. Section 2.6 of the application form clearly required time frames to be filled in. The Claimant merely stated ‘As soon as possible’. This issue was raised by Mr Wilson at the hearing, but Mr Williams did not avail himself of the opportunity to deal with it. In relation to the alternative submission that to give weight to time frames was perverse since meaningful timetables cannot be produced - the Claimant cannot both complain that the company could have given a more detailed time frame after the hearing had the matter been raised, and at the same assert that time frames are meaningless. Given that the matter was raised at the hearing, there is no unfairness to AML. Moreover, given that there was a section dealing specifically with timeframes, it was not irrational to take this aspect into account.”
“(i) Corus has submitted realistic production targets, whereas AML has overly optimistic targets, which in the Panel’s view are unlikely to be achievable.”
“[T]he so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”
“[B]ecause the decision [sc. which involved a mixed question of law and fact in the field of copyright] involves the application of a not altogether precise legal standard to a combination of features of varying importance, I think that this falls within the class of case in which an appellate court should not reverse a judge’s decision unless he has erred in principle: see Pro Sieben Media A.G. v. Carlton U.K. Television Ltd. [1999] 1 W.L.R. 605, 612-3. I agree with Buxton L.J. in Norowzian v. Arks Ltd. (No. 2)[2000] FSR 363 , 370 when he said: ‘...[W]here it is not suggested that the judge has made any error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at least by two of them, will be different from that of the trial judge.’” ‘...[W]here it is not suggested that the judge has made any error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at least by two of them, will be different from that of the trial judge.’”
“It is of great importance to separate two distinct and discrete stages in the comparative evaluation process. Stage 1 is the determination of the factual basis on which the assessment of each applicant will be based, while stage 2 is the subsequent comparative assessment and comparative evaluation.”
“28. One of the issues that the Commission had to decide in this case was the question of eligibility. If the Commission had concluded that the application fell down because it did not meet the eligibility criteria, then in my judgment it would be necessary for the Commission to point out in their decision why the application did not comply with the eligibility criteria. However, when considering the question of whether or not to grant an application which is eligible, differing situations can exist. There may be situations where the Commission conclude: ‘We reject the application, although it is eligible, on a particular ground.’ If that is the basis for the decision, then the Commission must say what the particular ground is. Certainly this is the case if they choose to make a promise, as was made in this case. 29. But there are other kinds of decisions of the Commission where a realistic assessment of what is appropriate dictates a different conclusion. When the Commission is engaged in assessing the qualities of the different applications which were before them in competition with each other, the difficulties which would be involved in giving detailed reasons become clear. First, the preference for a particular application may not be the same in the case of each commissioner. Secondly, in order to evaluate any reasons that are given for preferring one application to another, the full nature and detail of both applications has to be known. If the Commission were to be required to do what Mr Gordon submits was their obligation here, the Commission would have had to set out in detail each commissioner’s views in relation to each of the applications and to provide the background material to Asha so that they could assess whether those conclusions were appropriate. This would be an undue burden upon any commission. It would make their task almost impossible. It certainly would be in my judgment impracticable as a matter of good administration.”
“... [T]he Authority is aware that Mr Williams has, as a major or sole shareholder, had an involvement with a number of coal mines in South Wales. Two of these ended with financial failure, and others were not progressed, including one mine, Pentreclwydau South Colliery, which is still in licence but has never been worked under the Appellant’s parent company’s control (see Annex I for full details). This leads to a view that Mr Williams wishes to secure controlling interests rather than achieve coal production.”
“I am extremely disturbed and unhappy at the contents of Annex I. As I set out below, the document contains a number of important falsehoods, and creates a number of misleading impressions through omission. The document wrongly impugns me, my reputation and my successes in coal mining over the years. It is clear to me that it has played a significant part in the Authority’s decision to prefer Corus.”
“34(v)... The Panel noted that Mr Williams, through other associated companies, had failed to pursue mining operations: it was particularly relevant that another of Mr Williams’ companies, Modal Mining Limited, had failed to pursue exploration or mining activities on the Margam site following the Authority’s previous offer of a licence in 1998... [W]hatever Mr Williams’ reasons may have been for not pursuing the previous Margam application, the important point to bear in mind is that the Authority had before it two competing applications, one of which (Corus) appeared the more likely to be pursued and less speculative, given Corus’ own requirements for the coal. ... The Panel was also aware that Mr Williams had been associated with other mining operations which had not proceeded... While I do not regard these as matters which had a material bearing on the Panel’s views regarding the deliverability of [Abbey Mine’s] proposals at Margam, the track record of these other companies speaks for itself. At the hearing, the material point on which I wanted to canvass Mr Williams’ views concerned his failures to progress the Margam site. The fact remains that while AML may now find it more viable to mine the site at Margam, there was for the reasons set out above greater certainty over Corus’ proposals.”