“25. Coal-mining operations to be licensed. (1) Subject to subsection (3) below, coal-mining operations to which this section applies shall not, at any time on or after the restructuring date, be carried on by any person except under and in accordance with a licence under this Part.”
“26. Grant of Licences (1) Subject to subsection (6) below, it shall be the Authority which shall have the power to grant a licence under this Part.”
“26A. Licences for coal-mining operations in Wales: approval by Welsh Ministers. (1) If or to the extent that a licence under this Part authorises coal-mining operations in relation to coal in Wales, it shall have effect only if the Welsh Ministers notify the Authority that they approve the authorisation. (2) In this section "Wales" has the meaning given insection 158(1) of the Government of Wales Act 2006 .”
“(1) Nothing in a provision of this Act affects the validity of anything done by or in relation to a Minister of the Crown or other public authority before the provision comes into force. (2) Anything (including legal proceedings) that is in the process of being done by or in relation to a Minister of the Crown or other public authority at the time when a provision of this Act comes into force may, so far as it relates to a function transferred to the Welsh Ministers by virtue of that provision, be continued by or in relation to the Welsh Ministers.”
“3. PERMISSION TO CARRY OUT COAL-MINING OPERATIONS 3.1 The Authority, in exercise of the powers conferred on it by Part II of the 1994 Act and subject to the terms of this Licence, permits the Operator for the period of 99 years beginning and on the first date on which licence become unconditional in whole or in part in accordance with clause 17.1 to carry out Coal Mining Operations within the Licensed Area subject to and upon the restrictions and conditions mentioned in the Third Schedule (but limited to underground methods and any operations ancillary thereto).”
“27. CONDITIONALITY “27.1 Subject to Clauses 27.2 and 27.3 this Licence (apart from Clauses 1, 2, 9, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26 and this Clause 27) shall not take effect in relation to any part of the Maximum Licensed Area, unless and until such time as all the conditions mentioned in Part I and Part II of the Fourth Schedule shall in relation to such part and in the reasonable opinion of the Authority have been fulfilled. 27.2 If all the conditions mentioned in Part 1 of the Fourth Schedule have not been fulfilled by 1.30 p.m. on the date specified in Part III of the Fourth Schedule this Licence shall thenceforth cease to have any further effect in respect of that part, (save any right or remedy of the Authority granted against the Operator for any antecedent breach of the terms of this Licence). 27.3 If the provisions of this Licence (apart from those referred to in Clause 27.1) have not taken effect in relation to part (including the whole) of the Maximum Licensed Area by 1.30 p m on the date specified in Part IV of the Fourth Schedule this Licence shall thenceforth cease to have any further effect in respect of that part, (save for any right or remedy of the Authority against the Operator for any antecedent breach of the terms of this Licence.)” “27.1 Subject to Clauses 27.2 and 27.3 this Licence (apart from Clauses 1, 2, 9, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26 and this Clause 27) shall not take effect in relation to any part of the Maximum Licensed Area, unless and until such time as all the conditions mentioned in Part I and Part II of the Fourth Schedule shall in relation to such part and in the reasonable opinion of the Authority have been fulfilled. 27.2 If all the conditions mentioned in Part 1 of the Fourth Schedule have not been fulfilled by 1.30 p.m. on the date specified in Part III of the Fourth Schedule this Licence shall thenceforth cease to have any further effect in respect of that part, (save any right or remedy of the Authority granted against the Operator for any antecedent breach of the terms of this Licence). 27.3 If the provisions of this Licence (apart from those referred to in Clause 27.1) have not taken effect in relation to part (including the whole) of the Maximum Licensed Area by 1.30 p m on the date specified in Part IV of the Fourth Schedule this Licence shall thenceforth cease to have any further effect in respect of that part, (save for any right or remedy of the Authority against the Operator for any antecedent breach of the terms of this Licence.)”
“Part 1 Date by which Conditions Precedent are to be satisfied 1. The Conditions Precedent are to be satisfied no later than31 December 2020 ….. Part 2 Conditions Precedent 1. The Licensee has served a valid notice pursuant to the Option Agreement in relation to the relevant part of the Maximum Licensed Area so as to entitle the Licensee, subject to the provisions of paragraph 3.2 of the Third Schedule to the Option Agreement, to be granted a lease of the Coal in the relevant part of the Maximum Licensed Area. 2. The Planning Condition Precedent as described in Paragraph 2.3 of Schedule 2 to the Option Agreement has been satisfied. 3. The Licensee has secured all other rights and permissions necessary to carry out Coal-Mining Operations in the relevant parts of the Maximum Licensed Area. 4. The Licensee has supplied all information requested by the Authority for the purpose of the performance of its duties under sections 2(1)(b) and 2(2)(a) of the 1994 Act . 5. The Licensee has become a party to the Interaction Agreement. 6. Where: (a) all the above Conditions Precedent are fulfilled in respect of the relevant part of the Maximum Licensed Area; and (b) the Authority has not, within one calendar month of receipt of the Licensee's notice pursuant to paragraph 4.1 of the Option Agreement, notified the Licensee that: (i) it requires further information to be supplied for the purpose aforesaid, or (ii) it has decided, in the performance of its duties under sections 2(1)(b) and 2(2)(a) of the 1994 Act, that the Licence should not become unconditional in relation to such parts of the Maximum Licensed Area; and (c) the Licensee has given notice to the Authority referring to this Condition 6; this Condition 6 shall be construed as if the Licensee had at the expiry of the said period of one calendar month served the Licensee with a notice that the Licence had become unconditional in relation to such part.”
“The Welsh Government considers thatsection 26A of the Coal Industry Act 1994 is triggered if the Coal Authority issues, on or after the date section 26A came into force (i e1 April 2018 ), a licence authorising mining in relation to coal in Wales. The 1996 Aberpergwm licence (as amended by the deed of variation in 2013) granted the authorisation for certain coal mining operations, but suspended the effect of the authorisation until certain condition precedents had been discharged. The application to de-condition the Aberpergwm licence seeks to give effect to the authorisation already granted by the Coal Authority in 1996 (and varied in 2013). The Welsh Ministers’ function under section 26A only applies to new or extended licences (such as where the degree of authorisation for mining operations changes to allow new coal extraction), and does not therefore allow Welsh Ministers to refuse or approve a licence in these circumstances. Therefore, the Welsh Ministers will not be making a determination in this case. Officials have also written to Energybuild formally confirming this position.”
“88. In ascertaining the meaning, the central question is whether the words “authorises coal-mining operations” encompass an authorisation which has not come into force, having been “postponed” pursuant to conditions imposed in accordance with section 27(3) which have not yet been satisfied. On balance, I am of the view that the language of the provision favours the claimant's interpretation.” (Emphasis in the original).
“89. First, a postponed authorisation does not in fact permit the licensee to undertake any coal-mining operations. It would be natural to interpret the words “authorises coal-mining operations”, and the term “authorisation” in section 26A, as referring only to those authorisations which are in force and, subject to the Welsh Ministers’ approval, which currently authorise coal-mining operations. Moreover, I agree with the claimant's submissions as summarised in paras 57–58 and 60 above. 90. Secondly, it would be natural to infer that the words “it shall have effect only if” mean that upon the Welsh Ministers notifying their approval, the authorisation takes effect. But if section 26A encompasses postponed authorisations then the Welsh Ministers could approve a postponed authorisation before any of the conditions have been satisfied; and so it would continue not to be in force until such time as the Coal Authority gives notice that the conditions are satisfied. 91. Thirdly, a related point is that if the Welsh Ministers were to approve a postponed authorisation, the effect may be that many years later, at the point when the conditions are satisfied and coal-mining operations are set to begin for the first time, the Welsh Ministers who are then in post would have no power to prevent such operations. As a matter of policy, the Coal Authority normally specifies a maximum of eight years for conditions to be satisfied, but nothing in the 1994 Act prevents the period being much longer. 92. However, this interpretation is not clear-cut. The language of section 27(3)(a) uses the term “the authorisation contained in the licence” to describe a postponed authorisation. This provides some support for the Welsh Ministers’ interpretation of the term “authorisation” in section 26A as wide enough to include a postponed authorisation. I note that section 27(1) uses the present tense when referring to coal-mining operations which “are authorised”, subject to conditions; and I accept that provision clearly applies to a licence which contains a postponed authorisation. However, it does not seem to me that undermines the point made in para 89 above, given the express words “subject to its conditions” which find no likeness in section 26A. 93. In my view, there are two further factors that provide some support for the claimant's interpretation. First, the purpose of section 26A was to strengthen the powers of the devolved government of Wales. Although, on any interpretation, it does so, the claimant's interpretation gives the Welsh Ministers power to address whether coal-mining operations which have not yet begun should be permitted. Whereas, on the Welsh Ministers’ interpretation, in the circumstances of this case they are left asking the UK Government to exercise its powers to intervene in Wales. 94. Secondly, section 26A was enacted against the background of national and international recognition of the vital importance of urgent efforts to combat climate change. It may be thought surprising if, in this context, Parliament had intended that the Welsh Government should have no power to determine whether, in a case such as this one, coal-mining operations that have not yet been permitted, should be allowed to begin and continue for nearly two decades. An interpretation that empowers the Welsh Government in the present is, in my view, more consistent with the context in which section 26A was brought into force.”
“95. Pulling strongly in the opposite direction, however, is the fact that interpreting section 26A as applying in a case such as this, where the licence containing the postponed authorisation was granted before section 26A came into force, gives the provision a degree of retrospective force.”
“100. As the passage from Bennion cited above indicates, retrospectivity is a question of degree. The claimant's interpretation is not retrospective to a degree that would be caught by paragraph 6 of Schedule 7 to theWales Act 2017 . But as stated in the passage from Craies cited by the Welsh Ministers (see para 76 above), the instant case can be seen to be an example of a statute which, on the claimant's interpretation, “attaches a new disability in respect to transactions or considerations already past”
“(1) The judge erred in law in finding that the [appellant’s] interpretation is not retrospective to a degree that would be caught by paragraph 6 of Schedule 7 to theWales Act 2017 , but was nonetheless retrospective because it attached a new disability to existing rights:” (2) The judge erred in law when treating a coal mining licence, with an authorisation which was not in effect, as a possession within the meaning of Article 1 of Protocol 1 [to the Convention] (“A1P1”). (3) In the alternative, the Judge erred in law in: (i) assuming when considering the degree of unfairness that there would necessarily be a deprivation and, if there were, that the deprivation would necessarily be unfair; and (ii) failing to address proportionality when considering potential application of A1P1 and/or the need to strike a balance when applying the common law principle of fairness to statutory provisions with potential retrospective effect.” (i) assuming when considering the degree of unfairness that there would necessarily be a deprivation and, if there were, that the deprivation would necessarily be unfair; and (ii) failing to address proportionality when considering potential application of A1P1 and/or the need to strike a balance when applying the common law principle of fairness to statutory provisions with potential retrospective effect.”
“(a) for the coming into force of the authorisation contained in the licence, or any conditions or provisions of the licence to be postponed until after the acquisition by the holder of the licence of any interest or right in or in relation to any land or other property or until after such other requirements as may be specified or described in the licence have been satisfied; and (b) for the licence to lapse if the interest or right is not acquired or the other requirements are not satisfied, within such period as may be specified.”